A . 

^ ^ 

0  3 

0 — I 

8  ^— ? 

4  ^=B 

2  5 

^  5  5 

0^ — ■■% 

'    3 

THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Jy^/0\/rajJLJt^<niJ^ 


From 

JACKSON 
Mr  BOOKS 

berton  Sauare 


NOTES 


ON 


EQUITY  PLEADING  AND  PRACTICE 


MASSACHUSETTS 


BY 

JAMES  B.  RICHARDSON 


BOSTON 

TH?:   BOSTON    BOOK   COMPANY 

1904 


Copy  right,  1904 
By  James  B.  Richardson 


T 
1904- 


THE  UNIVERSITY    PRESS,    CAMBRIDGE,    U.  S.  A. 


NOTE 

The  following  pages  are  the  result  merely  of 
the  habit  of  making  notes  of  cases  and  other 
authorities  referred  to  on  questions  of  pleading 
and  practice  in  equity,  discussed  or  examined  in 
the  first  division  of  equity  of  the  Superior  Court 
in  Boston,  in  the  last  few  years ;  and  were  made 
merely  for  handy  reference  in  future  cases,  with 
no  thought  of  publishing  them,  or  of  their  use  by 
others;  but  it  has  been  suggested  that  they  may 
be  of  some  use,  at  least  to  younger  members  of  the 
bar,  if  made  accessible;  if  that  shall  prove  to  be 
the  case,  the  slight  labor  of  putting  them  in  the 
form  here  presented  will  be  fully  compensated. 

On  many  points,  a  few  only  of  the  cases  origi- 
nally noted,  are  cited  here;  these,  of  course,  are 
the  latest,  for  they  are  the  better  authority.  In 
many  cases,  "The  older  precedents  in  equity," 
said  Sir  George  Jessel,  M.  R.,  "are  of  very  little 
value.  The  doctrines  are  progressive,  refined,  anil 
improved,  and  if  we  want  to  know  what  the  rules 
of  equity  are,  we  must  look  rather  to  the  more 
modern,  than  to  the  more  ancient  cases."  In  re 
Hallett's  Estate,  13  Ch.  Div.  710  (1879). 


IV  NOTE 

This  is  especially  true  in  respect  to  the  forms 
of  pleading  and  procedure  in  suits  in  equity,  which 
have  undergone  great  changes  within  the  last  few 
years.  But  the  essential  distinctions  between 
legal  and  equitable  remedies  remain,  and  the 
necessity  of  observing  them  continues.  If  a 
"  mastery  of  the  science  of  equity  pleading "  is 
not  now  so  indispensable  to  a  lawyer  as  it  was 
deemed  to  be  in  the  days  of  Daniell  and  Story, 
under  the  technical  and  complicated  system  which 
they  described,  a  knowledge  of  the  rules  of  plead- 
ing and  practice  in  courts  of  equity  is  still  con- 
ducive to  professional  success,  and  to  the  proper 
conduct  of  equity  causes. 

J.  B.  R. 
Boston,  June,  1904. 


CONTEXTS 

PLEADIX(;s   IX    EQUITY 

Pages 

The  Bill 1-18 

Thk  Parties 19-28 

Parties  Plaintiffs 29-32 

Parties  Defenoaxts 33-35 

Kills  of  Ixtekpleader 36-40 

Cross-Bills 41,  42 

Bills  of  Discovery 43.  44 

SrPPLEMEXTAL    BiLLS 45 

Bills  of  Revivor 45 

Demcrrers 46-52 

Pleas 53-58 

Answers 59-63 

Disclaimer "    .       64 

Replication 65,  66 

PRACTICE   IN   EQUITY 

Pro  Coxfesso 67-69 

Interrogatories  to  the  Adverse  Party    .     .       70-79 

PIASTERS,      their      REPORTS,     AND      EXCEPTIONS 

thereto 80-88 

Findings  by  the  Court 89,  90 

Trial  by  Jury 91-94 


VI  COxNTENTS 

Pages 

Dfxrees 95-116 

Injunctions  . 117-127 

COXTKMPTS 128-133 

IvECEIVERS      134-147 

Ne  Exeat 148,  149 

Cas^e  Reserved  or  Reported 150 

Exceptions 153,  152 

Appeals 153-157 

Amendments 158-160 

Bills  of  Review 161-164 

Costs 165-170 

Forms  of  Pleadings 171-173 

Forms  of  Decrees 174-188 


TABLE  OF  CASES  CITED 


Page 

Abbott  V.  Bradstreet  (3  Allen,  587) 166 

Allen  r.  French  (178  Mass.  539) 86 

i".  French  (180  Mass.  487,  489) 12,116 

V.  Turner  (11  Gray,  43*5) 24,  25 

Alvord  y.  Stone  (78  Me.  296) 166 

Ambler  y.  Choteau  (107  U.  S.  586,  591)       .......         8 

Am.  Carpet  L.  Co.  v.  Chipmaii  (146  Mass.  385) 63 

Amherst  &B.  R.  R.  r.  Watson  (8  Gray,  529)        77 

Amy  y.  Manning  (149  Mass.  487)        11,17,111 

Angell  V.  Haddon  (15  Ves.  244) 37 

Anthony  v.  Anthony  (161  .Mass.  343) ,30 

Anthracite  Ins.  Co.  v.  Sears  (109  Mass.  383)        109 

Arnold  v.  Commonwealth  (bO  Ky.  300)        130 

Ashton  V.  Atlantic  Bank  (3  Allen,  217)        24 

Atty.  Gen.  v.  Barbour  (121  Mass.  573) 155 

V.  Sheffield  (3  D.  M.  &  G.  304,  320) 14 

V.  Williams  (178  Mass.  330,  335)        25,  116 

Bailey  v.  Hemenway  (147  Mass.  326) 54,  95 

V.  Stiles  (3  N.  J.  Eq.  245) 61 

Baker  y.  Carpenter  (127  Mass.  226) 74 

1-.  Mayi)  (129  Mass.  517)        84 

Ballou  V.  Hopkinton  (4  Gray,  324) 27 

Barry  v.  Abbott  (100  Mass.  3'J6) 48 

Bartlett  y.  Batts  (14  Ga.  539) 34 

V.  Johnson  (9  Allen,  530) 166 

r.  Parks  (1  Cush.  82) 4 

Bassett  y.  Leslie  (123  N.  Y.  393) 39 


Viii  TABLE    OF    CASES    CITED 

Page 

Batchelder  Petr.  (147  Mass.  470) 37 

Baxter  y.  Massasoit  Ins.  Co.  (13  Allen,  320) 77 

Beasley  iJ.  Te.xas&Pac.  Ry.  (191  U.  S.  492)       120 

Bennett  w.  Sweet  (171  Mass.  GOO) 16,110 

Bill  r.  New  Albany  R.  R,  (2  Biss.  390)    . 141 

Billings  r.  Mann  (156  Mass.  203) 1,3,21 

Birmingham  r.  Gallagher,  e/ a/*.  (112  Mass.  190)      .     .     .      21,28 
Blair  f.  Telegram  News  Co.  (172  Mass.  201)    ......        12 

Blandiard  v.  Cooke  (144  Mass.  207,  215,  218)  .  .  68,  147,  150 
Bliss  r.  Am.  Bihle  Soc.  (2  Allen,  334) 167 

r.  Parks  (175  Mass.  589) 50 

Blossom  y.  Negus  (182  Mass.  515) 104 

Bogle  V.  Bogle  (3  Allen,  158) 168 

Bond  I'.  Fay  (I  Allen,  212) 169 

Booraeni  v.  N.  H.  R.  Co.  (40  N.  J.  Eq.  557)     ......     120 

Boston  &  Worcester  R.  R.  Cor.  v.  Sparhawk  (1  Allen,  448)       103 

Bottom  y.  Clarke  (7  Cush.  487) Ill 

Bowditch  V.  Soltyk  (99  Mass.  136) 166 

Bradlee  v.  Appleton  (2  Allen,  93)        104,  lO'J 

Brande  f.  Grace  (154  Mass.  210) 112,123,124 

Breck  v.  Barney  (183  Mass.  139) 97 

Bresnihan  i-.  Sheehan  (125  Mass.  11) 108 

Brewer  1-.  Boston  Theatre  (104  Mass.  378,  386) 11 

Brooks  V.  Tarbell  (103  Mass.  499) 91 

r.  Twitchell  (182  Mass.  443) 163 

Brown  )'.  Bank  (148  Mass.  300) 167 

V.  Home  (8  Beav.  607) 69 

V.  Tallman  (N.  J.  Eq. ;  54  Atl.  Rep.  457) 49 

Buffington  v.  Harvey  (95  U  S.  99) 162 

Burgess  u.  Seligraan  (107  U,  S.  20) 6 

Burlingame  ik  Bartlett  (161  Mass.  593) 157 

Burnett  y.  Com.  (169  Mass.  419,  429) 156,166 

Bushnell  v.  Avery  (121  xMass.  148) 7 

Butchers'  Association  o.  Boston  (137  Mass.  186)  ....  104 
Byers  I'.  Franklin  Coal  Co.  (106  .Mass.  131)     .    " 158 

Cadigan  c.  Brown  (120  Mass,  4!)3) 27 

Cake  y.  Mohun  (164  U.  S.  311) 146 


TABLE    OF   CASES    CITED  IX 

Page 

Campbell  v.  Mackay  (1  My.  &  Cr.  618) 41) 

Carleton  v.  Rugg  (149  Mass.  550,554,  555) 14,  119 

Carter  v.  Commonwealtii  (96  Va.  791) 130 

Cartwright  v.  Clark  (4  Met.  104,  109) 42 

Cartwright's  Case  (114  Mass.  230,  231,  239)      .     128,  131,  132,  147 

Cary  c.  Herrin  (62  Me.  18) 87 

Cassidy  I'.  Shimmin  (122Mass.  406,  410) 20,28 

Cates  V.  Allen  (149  U.  S.  451) 16 

Cavendery.  Ca vender  (114  U.  S.  464,  471) 63,66 

Chapman  v.  Banker  &  Tr.  Pub.  Co.  (128  Mass.  478,  479)    15,  17, 32 

Ciiase  V.  Huljbard  (158  Mass.  91) 89 

Cheney  y.  Gleason  (125  Mass.  166,  180) 104,153 

Chipmaii  v.  Manufacturers'  Nat.  Bk.  (156  Mass   147)  ...       96 

Churchill  y.  Ricker  (109  Mass.  211) 77,79 

Ciiute  ?;.  Quincy  (156  Mass.  189) 114 

Claflin  y.  Low  (157  Mass.  257) 114 

Clapp  V.  Thaxter  (7  Gray,  384) 161 

Clark  V.  Lee  (185  Mass.  223) 7 

Clason  V.  Corley  (5  Sanf.  454) 69 

Cleveland  Lv*  Hampden  Savings  Bk.  (182  Mass.  110)    ...       89 

Cobb  V.  Fogg  (166  Mass.  466) 34,  51,  87 

I'.  Rice  (130  Mass.  231) 39,40,50,167 

Coburn  v.  Cedar  Valley  Land  Co    (138  U.  S.  221)    ....       42 

Cockburn  y.  Thomp.son  (16  Ves.  321,  329) 20 

Colt  V.  Woolaston  (2  P.  Wms.  154) 2 

Columbia  Bk.  Co.  y.  He  Golyer  (115  Mass.  69)     .     .     .     .-.     110 

Colvin  V.  Hartwell  (5  CI.  &  Fin.  (H.  L.)  522) 100 

Com.  c.  Eagle  Fire  Ins.  Co.  (14  Allen,  ?A4) 146 

V.  Franklin  Ins.  Co.  (115  Mass.  278) 142 

V.  Gould  (118  Mass.  300) 141,  145 

V.  Hide  &  Leather  Ins.  Co.  (119  Mass.  157)    .     .     .      141,  145 

y.  Mechanics' Ins.  Co.  (112  Mass.  192) 94 

y.  Suffolk  Trust  Co.  (161  Mass.  550) 94,154 

Conant  v.  Perkins  (107  Mass   79) 162 

Connellw   Morse  (182  Mass.  439) 97 

Cooke  y.  Barrett  (155  Mass.  413) 114 

Copeland  i:  Crane  (9  Pick.  73) 82 

Corcoran  u.  Chesapeake  Canal  Co.  (94  U.  S.  741)     ....      99 


X  TABLE    OP    CASES    CITED 

Page 

Covelli'.  Heyman  (111  U.  S.  176,  182) 5,6 

Covvdrey  v.  Galveston  II.  U.  (9^  U.  S.  352) 146 

Craig  i\  Kittredge  (23  N.  H.  231) 116 

Cram  r.  Moore  (158  Mass.  276)       80 

CrandalU".  Slaid  (11  Met.  288) 168 

Crawford  ?;.  Langmaid  (171  Mass.  309) 110 

Crease  «;/"/.  t'.  Babcock  (10  Met.  525,  531) 19,54 

Creely  r.  Bay  State  Bk.  Co.  (103  Mass.  514) 50 

Crocker  1-.  Dillon  (133  Mass.  91) 50 

V.  Rogers  (58  Me.  339) 21 

Crossman  ?;.  Card  (143  Mass.  152)       85 

Crowell  V.  Cape  Cod  Ship  Canal  Co.  (164  Mass.  235)  ...  21 

V.  Keen  (159  Mass.  352) 89 

Culbert  y.  Hall  (181  Mass.  24,  25)       91 

Cummings  y.  Barrett  (10  Cush.  186) .14 

Cunningham  r.  Davis  (175  Mass.  213) 29 

Curran  r.  Burgess  (155  Mass.  86) 99 

Currier  v.  Esty  (110  Mass.  536)       163 

r.  Howard  (14  Gray,  511) 26 

D'Arcy  v.  Beytagli  (Flanagan  &  Kelly,  500) 53 

.Dary  y.  Kane  (158  Mass.  376) 6,18 

Davidson  c.  Johnson  (14  N.  J.  Eq.  112) 54 

Davis  y.  Mills  (163  Mass.  481) 74 

V.  Parker  (14  Allen,  94) 101 

I'.  Peabody  (170Mass.  397) 21,28,49 

Davis  &  F.  M.  Co.  v.  Los  Angeles  (189  U.  S.  207)  ....  119 
Davis  et  id.  v.  Bay  State  League  (158  Mass.  434)      ....     167 

r.  Davis  (123  Mass.  590) 91 

Dearth  y.  Hide  &  Leather  N.  Bk.  (100  Mass.  540,  543)      .       3,51 

Debs, /«  re  (158  U.  S.  595) 13,125,128,129 

Deehan  (-.Johnson  (141  Mass.  24) 65 

Di'erfield  r   Ninis  (110  Mass.  115) 24,25 

Di'hon  r.  Foster  (4  Allen,  550)       95 

Dennett  ?'.  Codnian  (158  Mass.  371)    .     .     .     .".     .     .     .94,114 

Denny  v.  Mattoon  (2  Allen,  361) 130 

Dexter  r.  Arnold  (2  Sumner,  108)    ' 83 

V.  Arnold  (5  Mason  V.  C.  303) 164 


TABLE    OF    CASES    CITED  xi 

Page 

Dimmock  i'.  Bixby  (20  Pick.  368) 48 

Doaiie  r.  Preston  {18."3  Mass.  509)       51 

Doherty  v.  Mercantile  'Jrust  Co.  (184  Mass.)       12 

Dole  V.  Wooldredge  (142  Mass.  182) 92 

Doody  V.  Pierce  (9  Allen,  141) 26,  65 

Dorr  u.  Tremont  Bank  (128  Mass.  349) 91,151 

Downing  y.  Elliott  (182  Mass.  28)       121 

Downs  V.  Fuller  (2  Met.  135) 104 

Draper  y.  Rollings  (163  Mass.  127) 16 

Driscoll  y.  Smith  (184  Muss.  221) 1,50 

Dudley  v.  Dudley  (176  Mass.  34) 93 

Duke  V.  King  (6  Beavan,  1) 33 

Dunphyi-.  Traveller  X.  Assn.  (146  Mass.  495) 12 

Dyer  w.  Sliurtleff  (112  Mass.  170) 166 

Dyke  v.  Stephens  (30  Ch.  Div.  189) 74 

East  Tenn.  Land  Co.  r.  Leeson  (183  Mass.  87.  38)    .     .     .      81-89 

(185  Mass.  4)      ....    97,  170 

(178  Mass.  206) 150 

Eastman  v.  Plumer  (46  N.  H.  464) 113 

Edwards  Hall  Co.  v.  Dresser  (168  Mass.  136)       ...    82,  83,  88 
Elkins  V.  Camden,  &c.  Ry.  Co.  (.36  N.  J.  Eq.  241)     ...     .       24 

Elliott  «;.  Balcom,  e^  rt/.  (11  Gray,  286) 105,163 

Ellis  V.  Boston  H.  &  E.  H.  Co.  (107  Mass.  28)       134 

Ellsworth  V.  Curtis  (10  Paige  Ch.  105) 64 

Emerson  v.  Atkinson  (159  Mass.  .356) 26 

Emery  v.  Parrott  (107  Mass.  95) 99 

Esty  V.  Clark  (101  Mass.  36) 166 

Evans  v.  Bacon  (99  Mass.  213) 162 

V.  Hamlin  (164  Mass.  239) 105 

Everett  v.  Edwards  (149  Mass.  588) 26,  28 

Fairbanks  /•.  Belknap  (135  Mass.  179,  182) 37 

Falmouth  Bank  c.  Cape  Cod  Ship  C.  Co.  (166  Mass.  550)     .     137 

Farley  i:  Blood  (30  N.  H.  3-54) 40 

1-.  Kittson  (120  U.  S.  .303) ,55,56 

Faulkner  *.-.  Wamesit  Power  Co.  (158  Mass.  435)      ....      28 


Xll  TABLE   OP    CASES    CITED 

Page 

Felch  y.  Hooper  (119  Mass.  52,  53) 34,96 

Fels  V.  Raymond  (139  Mass.  98) 79 

Fitzgerald  v.  Fitzgerald  (165  Mass.  471) 154 

Fletciier  c.  Bartlett  (157  Mass.  113) 89 

Florence  Macli.  Co.  w  Grover,  &c.  (110  Mass.  1) 125 

Flye  V.  Berry  (181  Mass.  442) 87 

Flynn  y.  Flynn  (183  Mass.  365,  3G6) 27,31 

Fogg  V.  Blair  (139  U.  S.  118) 8 

V.  Price  (145  Mass.  513) 159 

Foley  y.  Talbot  (162  Mass.  462) 160 

Folger  V.  Columbian  Ins.  Co.  (99  Mass.  267) 140 

Foote  I'.  Gibbs  (1  Gray,  412)      .     .' 103 

Forbes  v.  Tuckerraan  (115  Mass.  115)      .    27,  67,  68,  96,  145,  153 

Forrest  i\  River  Lead  Co.  (165  Mass.  193) 37 

Foss  V.  Nutting  (14  Gray,  484) 76 

Foster  y.  Foster  (133  Mass.  179) 110 

V.  Goodricli  (127  Mass.  176) 121 

Fowie  y.  Torrey  (131  Mass.  289) 23,28 

Francis  y.  Daley  (150  Mass.  381) 89 

Frankel  v.  Frankel  (173  Mass.  214,  216) 27,  129 

Freeland  v.  Wright  (154  Mass.  492) 81 

French  y.  Peters  (177  xMass.  568) 31,87,156 

Frost  V.  Belmont  (6  Allen,  152) 168 

Frow  V.  De  La  Vega  (15  Wall.  552) 68 

Fuller  V.  Chapin  (165  Mass.  1) 154 

Gale  V.  Nickerson  (151  Mass.  428) 15 

Gamble  v.  Johnson  (9  Mo.  597) .  61 

Gardner  Inst.  v.  Emerson  (91  Me.  535) 89 

Garsty.  Hall  &  Lyon  Co.  (179  Mass.  588,  590) 8 

Gay  y.  Parpart  (106  U.  S.  690) 107 

Gear  u.  Horton  (159  Miss.  259)       Ill 

George  y.  Reed  (101  Mass.  378) 158 

Gerding  y.  E.  Tenn.  Land  Co.  (185  Mas.9.  4) 101 

Gerrish  y.  Black  (109  Mass.  474) - 96 

V.  Tovvne  (3  Gray,  86) 9 

Goff  y.  Hathaway  (180  Mass.  497)    ' 68 

Goldthwait  y.  Day  (149  Mass.  185) 42,  9'J 


TABLE    OP    CASES    CITED  xiii 

Page 

Goodell  y.  Goodell  (173  Mass.  140) 9) 

Gordon  y.  Green  (113  Mass.  259) 28 

Grady  v.  Robinson  (28  Ala.  289) 61 

Grant  v.  Bryant  (101  Mass.  567) 147 

Gray  v.  Cliase  (184  Mass.  444) 94,  155 

I'.  Parke  (155  Mass.  433) 73 

Great  Falls  Co.  v.  Worster  (23  N.  H.  462)        95 

Greene  v.  Canny  (137  Mass.  64) 27 

Gregory  i'.  Merchant's  Nat.  Bk.  (171  Mass.  07)  .  .  .  5,  27,  28 
Gunn  V.  N.  Y.,  N.  H.  &  H.  U.  R.  (171  Mass.  117,  420)   ...       71 

Hadley  v.  Watson  (143  Mass.  27) 10 

Hall  u.  Liardet  (\V.  N.  1883,  175) 78 

Haman  v.  Brennan  (170  Mass.  405) 17,  10:> 

Hamilton  >\  Gilnian  (12  111.  260) 6:5 

Hamlin  v.  N.  Y.,  N.  H.  &  H.  K.  R.  Co.  (170  Mass.  »48,  550)  131 
Hancock  v.  Carlton  (6  Gray,  3'J) 54,  r).5 

V.  Franklin  Ins.  Co.  (107  Mass.  113) 7(3 

Hansel!  v.  Hansell  (44  La.  548) 64 

Hardin  y.  Boyd  (113  U.  S.  761) ]50 

Harding  1-.  Riley  (181   Mass.  334) 169 

Harkrader  j;.  Wadley  (172  U.  S.  148,  164)         5 

Harrington  y.  McCarthy  (169  Mass.  492) 112 

Hart  V.  Sansom  (110  U.  S.  151,  154) 95,  105,  1()7 

Haskell  v.  Merrill  (179  Mass.  120)       83 

Hayes  f.  Harmony  Grove  Cemetery  (108  Mass.  402)  .  .  83,  114 
Haywood  v.  Leeson  et  «/.  (176  Mass.  310)     ....     31,  101,  14t) 

Heard  v.  Pierce  (8  Cusli.  31.j) 128 

Henderson  v.  Foster  (182  Mass.  447) 82,  87 

Hendry X  v.  Fitzpitrick  (19  Fed   Rep.  810)       133 

y.  Perkins  (114  Fed.  Rep.  801) 161 

Heywood  r.  Miner  (102  Mass.  466) 85 

Hildreth  c.  Tr,ii)edeau  (185  Mass.) 98,150,164 

Hills  I'.  Barnard  (152  Mass.  67)       28 

f.  Parker  (111  Mass.  508) 141,142,144 

Hobbs  V.  Stone  (5  Allen,  109) 74,  75,  78 

Holden  v.  Holden  (24  III.  App.  106,  117) 4 

1-.  Hoyt  (184  Mass.  181,  185) 5 


XIV  TABLE    OF    CASES    CITED 

Pige 

Hollingsworth  &  Co.  v.  Foxboro  W.  S.  Dist.  (171  Mass.  450)  1U6 

Hollins  y.  Brierfield  C.  Co.  (loOU.  S.  371) 16 

Holt  V.  Weld  (140  Mass.  578) 65 

Homer  y.  Barr  Pump.  E.  Co.  (180  Mass.  163)       ....    31,  14(j 

Howartli  v.  Lombard  (175  Mass.  570) 31 

Howe  V.  Russell  (36  Me.  115) 88 

Howland  v.  llooke  (158  Mass.  590) 170 

Hubbell  y.  Currier  (10  Allen,  337) 112 

Humes  u.  Scruggs  (94  U.  S.  22) Ct; 

Huuiphrey  v.  Baker  (103  U.  S.  736) 102,  154 

Hutchinson  i\  Nay  (183  Mass.  355) 81,  84 

Lasigi  *!.  Chicago  B.  &  Q.  K.  (12.)  Mass.  46) 167 

Idaho  &  O.  L.  Co.  *'.  Bradbury  (132  U.  S.  516) 93 

Ingram  v.  Little  (11  Q.  B.  I).  251) 73 

Interstate  Com.  Commission  v.  Brimson  (154  U.  .S.  489)    .     .  129 

Irvine,  £'.r;)ar?e  (74  Fed.  Rep.  960) 75 

Ishara  r.  Miller  (81  N.J.  Eq.  61) 64 

Jackson  v.  Stevenson  (156  Mass.  406) 124 

Jaff ray,  £a:/j«?te  (1  Lowell,  321) 167 

Jarvis  v.  Crozier  (98  Fed.  Rep.  753,  756) 30 

Jewett  y   Tucker  (139  Mass.  566) 28 

Joiuison  ;;.  Waterhouse  (152  Mass.  585,  586) 35 

V.  Waters  (111  U.  S.  674) 105 

Jones  (-'.  Arena  Pub.  Co.  (171  Mass.  22)       142 

y.  Davenport  (45  N.J.  Eq.  77) 95 

V.  Grant  (10  Paige,  348)       09 

y.  Keen  (115  Mass.  170) 80 

Kane  w.  Shields  (167  Ma.ss.  396) 155 

Keith  y.  Keith  (143  Mass.  262) 49 

Kellam  r.  Sayre  (30  W.  Va.  198) 21 

Kelly  r.  Morrison  (176  Mass.  531,  536) 41 

Kempton  r.  Burgess  (136  Mass.  192)        105 

Kennedy  v.  Gooding  (7  Gray,  417) 79 

Kenney  V.  Consumer's  Gas  Co   (142.Mass.  417) 122 

Kent  r.  Lake  Sup.  C.  Co.  (141U.  S.  75,  91) 8 


TABLE    OF    CASES    CITED  XV 

Paee 

Kershaw  f.  Kelsev  (100  Mass.  561) 2y 

Kilbourn  u.  Sunderland  (130  U.  S.  50-3,  514) 6 

King  1-.  Howes  (181  Mass.  415)         1.5^ 

V.  Kuepper  (22  Mo.  550) 2'.» 

Koehler  u.  Olsen  (68  Hun,  63) Ill 

Kohn  «;.  McNulta  (147  U.  S.  238) 93 

Koontz  V.  Northern  Bank  (16  Wall.  196) 142 

Ladd  1-.  Chase  (155  Mass.  417,  420) 36 

Lamb  I'.  Mclntyre  (183  Mass.  367) 100 

?;.  Montague  (122  Mass.  352) 26 

Lamson  i-.  Drake  (105  Mass.  568) 87 

Langdon  I'.  Pickering  (19  Me.  214) fj2 

Langley,  .£:ir/)arfe  (13  Ch.  Div.  110) 125 

Langmaid  v.  Reed  (1-59  .Mass.  409) '.t3 

Larcom  1-.  Olin  (160  Mass.  102,  110) 14 

Lawrence  Man.  Co.  r.  Janesviile  Mills  (138  U.  S.  552)      .     .  102 

Le  Gendre  v.  Byrnes  (44  N.  J.  Eq.  372)       U 

Lea  V.  Robeson  (12  Gray,  280)         47 

Lennon,  In  n  (64  Fed.  Rep  320;  166  L*.  S   554,       .     .       124,  125 

Lennon  v.  Porter  (2  Gray,  473)        26 

Lexington  Print  Works  r.  Canton  (171  Mass.  414,  416)     .     .  4 

Libby  v.  Xorris  (142  Mass.  246) 21,  2S 

Light  c.  Jacobs  (183  Mass.  206) 112 

Lincoln  ;•.  Eaton  (132  Mass.  69) 102 

Lippincott  v.  Shaw  Carriage  Co.  (.34  Fed.  Rep.  570)     ...  167 

Little  y.  Dusenbery  (46  N.  J.  L.  614) 143 

Lombard  v.  Morse  (155  Mass.  136,  137)        30 

Long '•.  Richanls  (170  .Mass.  126)        11.5 

Lord  r.  Harte  (118  :Mass.  271) 109 

Loring  v.  Thorndike  (5  Allen,  257,  270) 166,  168 

Lowenstein  v.  Glidewell  (5  Dillon,  325)        42 

Lucas  V.  Morse  (13U  .Mass.  59,  60)       98 

Lyell  V.  Kennedy  (33  W.  R.  44) 77 

Lyman  v.  Bonney  (101  Mass  562) 24 

Lynch  >:.  Union  Inst.  .Savings  (1-59  Mass.  306)      .     .    112,  123,  124 

Lynes '.-.  Hay  den  (119  Mass.  482) 26 


XVI  TABLE    OF    CASES    CITED 

Page 

Mackallu.  Casilear  (137  U.  S.  550) 11 

McCaiiii  V.  Randall  (147  Mass.  81,  90,  9'J)      105,  107,  109,  111,  12'J 
McConaughey  v.  Bennett's  Exts.  (50  W.  Va.  172)    ....       22 

McConnelU'.  Keliey  (138  Mass.  372) 89 

McFadden  v.  Murphy  (149  Mass.  341) 28 

McKay  r.  Kean  (167  Mass.  524) 91,  94 

McMahoni).  Gray  (150  Mass.  289) 108 

McMurtriew.  Guiler  p<  a/.  (183  Mass.  451,  454)     ....   45,152 

McNulta  V.  Lockridge  (141  U.  S.  327) 144 

McReau.  Mattoon  (13  Pick.  53) 103 

Maggie  J.  Smith  (123  U.  S.  349,  35G) 98 

Manhattan  Iron    Works  v.  French  (12  Abb.  N.  C.  (N.  Y.) 

446)       119 

Marriott  y.  Chamberlain  (17  Q.  B.  D.  151)        79 

Mass.  Gen.  Hospital  v.  State  Mut.  L,  Asso.  Co.  (4  Gray,  227)        3 
May  V.  Gates  (137  Mass.  389) 166 

V.  Parker  ( 12  Pick  234)        23 

V.  Wood  (172  Mass.  11) 8 

Maynard  v.  Cleaves  (149  Mass.  307) 109 

Mayory.  Collins  (24  Q  B.  D.  361) 73 

Mears  r.  Dole  (135  Mass.  508) I.j9 

Mellen  r.  Moline  Iron  Works  (131  U.  S.  352,  371)    ....     115 
Merchants  N.  Bk.  r.  Moulton  (143  Mass.  543,  544)  .     .    16,  91,  92 

I'.  Stevenson  (7  Allen,  489) 159 

Merriam  c.  Goss  (139  Mass.  77) 168 

Merrill  v.  Beckwith  (163  Mass.  503;  168  Mass.  72)     101,  104,  158 

V.  Wasiiburn  (83  Me.  189,  192) 7,  9 

Messer  v.  Grand  Lodge,  &c.  (180  Mass.  321,  323)       ....         8 

V.  Stower  (79  Me.  12) 10 

Metcalfy.  Metcalf  (85Me.  473) 93 

Mewshaw  i:  Mewshaw  (2  Md.  Ch.  12) 51 

Michigan  Stale  Bk.  l:  Ganhier  (3  Gray,  305,  308)    ....       20 

Miles  r.  Boyden  (3  Pick.  213) 30 

Milkman  y.  Ordwav  (106  Mass.  232) 100,112 

Mill  Uiver  Loan  F.  Assn.  v.  Ciaflin  (9  Allen,  101)    ....       47 

Mills  i:  Gore  (20  Pick.  37) " 103 

Minnesota  v.  Northern  Securities  Co.  (184  U.  S.  199,  236)     .       23 
Miss.  &  Mo.  U.  Co.  V.  Cromwell  (91  U.  S.  643)     .....     113 


TABLE    OF    CASES    CITED  XVll 

Page 

Moody  u.  Gay  (15  Gray,  457) 34,96,109 

Moore  c  Diament  (41  N.  J.  Eq.  612> 127 

r.  MansfiekM  182  Mass.  302) 16 

r.  Valda  (151  Mass.  3(33) 148,149 

Moors  V.  Ladenburg  (178  .\Iass.  272) 125 

r.  Moors  (17  N.  H.  481) 61 

V.  Washburn  (159  Mass.  176) 98 

Moran  y.  Sturgis  (154  U.  S.  156) 141 

Morse  f.  Stearns  (131  Mass.  :380) 106 

Muldoon  c.Muldoon  (133  Mass.  Ill) 39 

Murray  r.  Dehon  (102  Mass.  11) 45 

Nash  *;.  McCathern  (183  Mrtss,  345,  347) 1,4 

Nashua  &  Lowell  R.  R.  v.  Boston  &  Lowell  R.  R.  (169  Mass. 

157) 103,  150,  154,  161,  162,  163 

Nathan  1-.  Nathan  (166  Mass.  294) 1 

National  L.  Ins.  Co.  v.  Pingrey  (141  Mass.  411,  414)     .     .     .       3<i 

National  Park  Bk.  v.  Goddard  (131  N.  Y.  494) 135 

National  Tel.  Man   Co.  v.  Du  Bois  (165  Mass.  117,  118)    .     .       29 
Nelson  i:  Eaton  (66  Fed.  Rep  376) 69 

V.  Ferdinand  (111  Mass.  300) 47,50 

Nevitt, /n  re  (117  Fed.  Rep.  448) 133 

Newbury  v.  Blatchford  (106  111.  599)        42 

Newburyport  Bank  v.  Stevenson  (7  Allen,  489) 49 

Newton  i".  Thayer  (17  Pick.  129) 55 

Newton  R.  Works  v.  De  Las  Casas  (182  Mass.  436,  4.38)      81,  166 

-N.  Y.  City  r.  Pine  (185  U.  S.  93.  98)        113 

N.  Y.,N.  H.  &  H,  Petrs.  (182  Mass.  439) 105 

Nichols  V.  Rogers  (139  .Mass.  146)       8,  1-59 

V.  Rosenfeld  (181  Mass.  -525) 7,  9 

Norwood,  Petr.  (183  Mass.  151) 80 

Nudd  r.  Powers  (1.36  Mass.  273) 12 

Nye  r.  O.C.  R.  R.  (124  Mass.  241) 169 

'■.  Storer  (168Mass.  55) 8 

Oakham  v.  Hall  (112  Mass.  539) 64 

r)'Brien  v.  Keefe  (175  Mass.  276) 83 

Ockenholdt  v.  Frohman  (60  111.  App.  300)  ' 123 


XVlll  TABLE    OF    CASES    CITED 

Page 

O'Day  v.  Bowker  (143  Mass.  59) .      30 

O'Hara  v.  McConnell  (93  U.  S.  151) 68 

O'Hare  y.  Downing  (130  Mass.  16) ,     ...     119 

Otis  V.  Oiis  (167  Mass.  245)    .     .     .     . 112 

Pacific  Nat.  Bk.  v.  Windram  (133  Mass.  175) 109 

Pacific  R.R.j;.  Ketchum  (101  U.  S.  289) 102 

Paige  V.  Smith  (99  Mass.  395) 143 

Palmer  v.  Stevens   (100  Mass.  461) 21,  22 

Park  Bank  v.  Guddard  (131  N.  Y.  494)    ........     135 

Park  V.  Johnson  (7  Allen,  378) 104,  166 

Parker  v.  Flagg  (127  Mass.  28,  30)      ....  49,  50,  97,  104,  156 
y.  Nickerson  (187  Mass.  487)    ....     50,80,81,90,92,93 

V.  Parker  (42  N.  H.  78) 39 

V.  Simpson  (180  Mass.  8.34,  357) 25,  81,  91 

Parks  y.  Bishop  (120  .Mass.  810) 89 

Parsons  v.  Lyman  (4  Blatclif.  432) 21 

Patterson  v.  Miller  (4  Jones  Eq.  451) 123 

Pattison  v.  Hull  (9  Cowen,  747) 85 

Peabody  v.  Flint  (6  Allen,  52) 163 

Pearson  r.  Treadvvell  (179  Mass.  462) 51,62,151 

Pease  y.  Royal  Society  (176  Mass.  506) 40 

Pennoyer  v.  NefE  (95  U.  S.  714) 96 

People  t'.  Wilson  (64  III.  195) 132 

People's  Nat.  Bk.  v.  Marye  (191  U.  S.  272)       100 

Perego  v.  Dodge  (163  U.  S.  166) 3 

Perkins  y.  Nichols  (11  Allen,  542) 63,65 

Pettibone  v.  Toledo  R.  R.  Co.  (148  Mass.  411,  419)  ...   17,  110 

Piercey.Le  Monier  (172  Mass.  508)       26,28 

Pingree?;.  Coffin  (12  Gray,  288) 50 

Plaisted  «.  Cooke  (181  Mass.  118,  119) 98,161 

Plants.  Woods  (176  Mass.  493) 116,125 

Piatt  V.  Squire  (5  Cusli.  551)       160 

Pond  V.  Framingham,  &c.  R.R.  (130  Mass.  195) 137 

Poor  V.  Carleton  (3  Sumner,  75)     ... 121 

Pope  i;.  Leonard  (115  Mass.  286), 24,49 

i;.  Salamanca  Oil  Co.  (115  Mass.  287)         48 

Porter  y.  Kingman  (126  Mass.  141) 141,144 


TABLE    OF    CASES    CITED  XIX 

Page 

Post  V.  Toledo,  &c.  K.  R.  {144  Mass.  341) 48 

Powers  V.  Large  (75  Wis.  494) Do 

r.  Raymond  (137  Mass.  483) 16,92 

r.  Russell  (13  Pick.  69) 94 

Prescott  i\  Prescott  (175  Mass.  64) 97,  151,  152 

Price  V.  Minot  (107  Mass.  40) 24,  25 

Putnam  v.  Grace  (IGl  Mass.  237,  247) 10,  114 

Putney  v.  Fletcher  (148  Mass.  247; 18 

Quimby  v.  Cook  (10  Allen,  32) 94 

Radford  v.  Folsom  (14  Fed.  Rep.  97)       57 

Ransom  f.  Geer  (30  N.  J.Eq.  249) 31 

Redfield  v.  Gleason  (61  Vt.  220) 99 

Rennell  ;;.  Kimball  (5  Allen,  356,  866) 84 

Reynolds,  Admr.  v.  Burge.ss  Sulphite  Co.  (71  N.  11.  332)      .  44 

Rhode  Island  u.  Mass.  (14  Pet.  210) 53 

Rice  i-.D'Arville  (162  xMass.  559) 120 

V.  Hale  (5  Cush.  238)       148 

y.  Stone  (1  Allen,  566) 109 

V.  Winslow  (182  Mass.  273,  276)        5 

Richards  r.  Todd  (127  Mass.  167,  170) 41 

Richardson  v.  Clinton  W.  T.  Co.  (181  Mass.  580)      ...    12,  138 

Richmond  v.  Adams  Nat.  Bk.  (152  Mass.  3.59) 30 

Rickeri.  Brooks  (1.55  Mass.  400) '.  49 

Ricketson  f.  Merrill  (147  Mass.  81) 109 

Riley  v.  Hampshire  Co.  N.  Bk.  (164  Mass.  482) 101 

Ripley  v.  Collins  (162  Mass.  450) 94 

Robbins  r.  Brockton  St.  Ry.  (180  Mass.  51) 71,72 

Roberts  v.  Barker  (63  N.  H.  382) 81 

Robinson,  ^'xjoar^fi  (19  Wall.  505) 128 

V.  Brown  (182  Mass.  266) 155 

V.  Guild  (12  Met.  323) 50 

V.  Smith  (3  Paige  Ch.  (N.  Y.)  222) 22 

Rogers  v.  Patterson  (4  Paige,  450) 132 

Roosa  V.  Davis  (175  Mass.  117)        115 

Roper  V.  Upton  (125  Mass.  258) 120 


XX  TABLE  OF  CASES  CITED 

Page 

Eoss  V.  N.  E.  Ins.  Co.  (120  Mass.  117) 02 

Rowe  u.  Teed  (15  Ves.  377) o'^ 

Rowland  v.  Maddock  (183  Mass.  360) 16G 

Russell  I'.  Burke  (180  Mass.  543)     ....  2J,  105,  106,  107,  145 
?;.  Lathrop  (117  Mass.  424;  122  Mass.  300)   .     .     .     .     67,97 

V.  Loring  (3  Allen,  125) 52 

V.  Milton  (133  xMass.  180) 110 

Salisbury  Mills  v.  Townsend  (109  Mass.  115) 38 

Saltus  v.  Tobias  (7  Johns.  Ch.  215) 53 

Sandford  v.  Wright  (164  Mass.  85) 11,  15,  57 

Saunders  v.  Frost  (5  Pick.  271)       lt>5 

Savage  r.  Blanchard  (148  Mass.  348) 169 

Sawyers.  Davis  (136  Mass.  239) 163 

Savvyer,  In  re  (124  U.  S.  200) 13,  130 

Schlesinger  r.  Sherman  (127  Mass.  206,  208) 15,110 

School  District  v.  Weston  (31  Mich.  85) 38 

Schwoerer  v.  Boylston  Market  Ass'n  (99  Mass.  285)     ...       22 

Scofield  V.  Peck  (182  Mass.  123) 97 

Sears  v.  Hardy  (120  Mass.  524) 24 

Secorabe  y.  Campbell  (18  Blatch.  108) 56 

Sewall  V.  Sewall  (130  Mass.  201) 102,  154,  166,  167 

Shapira  v.  D'Arcy  (180  xMass.  377) 91 

Shaw  V.  Coster  (35  Am.  Decis'ns) 40 

Sherman  v.  Am.  Stove  Co.  (85  Mich.  169) 25 

Silloway  v.  Columbia  Ins.  Co.  (8  Gray,  199) lO:) 

Silva  V.  Turner  (166  Mass.  407) 81 

Skehill  V.  Abbott  (184  Mass.  145) 89 

Slater  v.  Banwell  (50  Fed.  Rep.  150)        78 

V.  Maxwell  (6  Wall.  268) 61 

Smiths.  Bank  of  N.  E.  (69  N.  H.  254) 28 

V.  Butler  (176  Mass   38)        I'JO 

r.  Clay  (3  Brown  Ch.  639)       11,101 

V.  MTver  (9  Wheat.  532) , 4 

y.  Smith  (148  Mass.  1) 27,118 

y.  Williams  (116  Mass.  510,  512) 20,  2S 

Smith  r.  Woolfolk  (115  U.  S.  143) 99 

Snow  f.  Boston  Blank  Book  Co.  (153  Mass.  450)     .     .     .      52,60 


TABLE    OF    CASES    CITED  XXI 

Page 

Snowman  v.  Harford  (57  .Me.  o'.<~) 115,  132 

Snyder  f.  Smith  (185  Mass.  58)       12" 

Society  v.  Watson  (?,  A.  &  E   Dec.  Eq.  29) 101 

Solinsky  v.  Lincoln  (85  Tenn.  372) H- 

Soper  V.  Manning  (147  Mass.  126)        '-8 

Spedding  i-.Fitzpatrick  (38  CI. .  Div.  410,414) ^ 

Springer  v.  Walters  (139  III.  419) H^ 

Springfield  v.  Springfield  St.  Ry.  (182  Mass.  44)      ....     124 

Spurr  *;.  Coville  (3  Cusii.  578) '"^ 

Squire  r.  Hewlett  (141  Mass.  597)       1^1 

V.  Lincoln  (137  Mass.  307) &'5 

v.  Tellier  (185  Mass.  18)       109 

Starkie  v.  Richmond  (155  Mass.  188,  195) 113,  124 

State  '■.  Mathews  (37  N.  H.  450) 129 

Stevens  y.  Hayden  (129  Mass.  328,  332) ' 

V.  Mulligan  (167  Mass.  84) 119 

V.  Warren  (101  Mass.  564) 39 

Stevenson  v.  Austin  (3  Met.  474) 21,  28 

St.  Louis  R.  Co.  V.  Johnson  (lo3  U.  S.  577) 7 

V.  Wilson  (114  U.  S.  60)       25 

Stokes  r.  Farnsworth  (99  Fed.  Rep.  836) 51 

Stone  V.  Locke  (48  Me.  425)        97,  165 

y.  Reed  (152  Mass.  179)        96 

Storey  r.  Lennox  (1  Keen,  357) "8 

Story,  ^x/>a/-<f  (12  Peters,  343) 151 

Stratton  r.  Hernon  (154  .Mass.  310) ■.     .         2 

r.  Physio.  Med.  Coll.  (149  Mass.  505) 167 

Sullivan  >:  Judah  (4  Paige,  446) 122 

Sylvester  r.  Boyd  (166  Mass.  445) 49 

Taft  1-.  Stoddard  (141  Mass.  150) 150 

«.  Stow  (174  Mass.  171)       170 

Taintor  r.  Cole  (120  Mass.  165) 113 

Tansey  v.  McDonnell  (142  .Mass.  220) 41,  57,  65 

Taunton  v.  Taylor  (116  Mass.  254) 3,  63 

Taylor  v.  Lovering  (171  Mass.  303) 35,  168 

I'.  Taylor  (74  Me.  582) 3,112 

Tenney's  Case  (23  N.  H.  162) 128 


XXll  TABLE    OF    CASES    CITED 


Third  Nat.  Bk.  v.  Skillings  L.  Co.  (132  Mass.  410,  411)    .     .       ;]8 

Thomas  y.  Beals  (154  Mass.  51) 100,165 

Thompson  r.  Gouldiii^  (5  Allen,  81,  84)       ....     98,104,162 

17.  Heywooil  (129  Mass.  401) 12 

r.  Maxwell  Land  Co.  (108  U.  S.  431) 102 

Thomson  I'.  VVooster  (114  U.  S.  104,  110) 67,68 

Tobey  t;.  McFarlin  (115  Mass.  98) Ill 

Tobin  y.  Central  Vt.  Ry.  Co.  (185  Mass.) 143 

i7.  Larkin  (183  Mass.  389) 101 

Todd  v.  Bishop  (136  Mass.  386) 75 

Tolinan  v.  Jones  (114  III.  147) 129 

Towle  c.  Fierce  (12  Met.  329) ■.     .      9,21,24 

y.  Swasey  (106  Mass.  100)        166 

Treadwell  v.  Salisbury  Mfg.  Co.  (7  Gray,  393,  399,  400)      37,  139 

Trimmer  V.  Penn.  H.  R.  (36  N.  J.  Eq.  411) 125 

Tripp  zj.  Gifford  (155  Mass.  108) 102 

Troy  &G.  Tl.  R.  r.  Com.  (127  Mass.  43) 33 

Trustees  w.  Greenough  (105  U.  S.  527) 167 

Tuck  r.  Manning  (150  Mass.  211) 110 

Tuciker  /■.  Howard  (128  Mass.  361) 124 

Tufts  V.  Waxman  (181  Mass.  120) 159 

Tyler  v.  Simmons  (6  Paige,  127) 85 

Tyndale  u.  Stanwood 152 

Tyrrell  r.  Washburn  (6  Allen,  466) 168 

Union  Mut.  L.  Ins.  Co.  v.  U.  of  Chicago  (6  Fed.  Rep.  443)    .  4 

U.  P.  Ry.  r.  Botsford  (141  Mass.  250) 75 

Union  Trust  Co.  r.  111.  Md.  Co.  (117  U.  S.  455)    .....  144 

z;.  Souther  (107  U.  S.  591) 100 

United  Shoe  .Machine  Co.  ;•.  Holt  (185  Mass.  97)     .     .     .    87,112 

United  States  /•.  Bell  Tel.  Co.  (30  Fed.  Rep.  523)     ....  53 

e.  Debs  (64  Fed.  Rep.  724)        126 

Vantine  r.  Morse  (104  Mass.  275) 114 

Vegelah  o.  Guntner  (167  Mass.  92) 116 

Tenable  iJ.  Rickenberg  (152  Ma.ss.  64) 17,111 

Vettcrlin  r.  Barnes  (124  U.  S.  169) '    21 


TABLE    OP    CASES    CITED  XXlll 

Page 

Wakefield  y.  Marr  (65  Me.  341) 30 

Walsh  ;;.  Walsh  (116  Mass.  377,  382,  383)   .     .     .     .     68,101,102 

AVaternian  v.  Clark  (58  Vt.  601) 127 

Watson  V.  Sutherland  (5  Wall,  74) Ill) 

V.  Williams  (36  Miss.  334) 129 

Watts  V.  Rice  (192  111.  127) 162 

WattsandSachs,  7h  re  (190U.  S.  1) 6,130 

Weatiierbee  v.  N.  Y.  L.  Ins.  Co.  (182  Mass.  342)      .     .     .  '  .       3G 

Weeks  v.  Currier  (172  Mass.  53) 1 

Western  R.  R.  Co.  v.  Babcock  (6  Met.  346) 114 

Wetherbee  v.  Winchester  (128  Mass.  293) 74,  76 

Whepley  v.  Erie  R.  Co.  (6  Blatchf.  271) 120 

White  V.  Gove  (183  Mass.  333) 104,  164 

V.  Kenny  (157  Mass.  12) 120 

V.  White  (169  Mass.  52,  55) 68,  69,  137 

Whiting  r.  Burkhardt  ( 178  Mass.  535) 3 

Whitney  e<  a/,  y.  Stearns  (11  Met.  319) lOl 

Whittemore '•.  Cowell  (7  Allen,  446) 25,27 

Whitten  «.  Whitten  (5  Cush.  42) 165 

Whitwell  0.  Willard  (1  Met  216) 94 

Whitworth  fc-.  Lowell  (178  Mass.  48,  50)      ....       82,84,115 

Wiggin  0.  Heywood  (118  Mass.  514) 110 

Wilde  V.  Baker  (14  Allen,  349) 145 

Wilkinson  u.  Stitt  (175  Mass.  581) 1,14,21 

V.  Washington  Trust  Co.  (102  Fed.  Rep.  28)      ....     147 

Willard  (!.  Wood  (164  U.  S.  502,  524) .       II 

William  Rogers  Mfg.  Co.  v.  Rogers  (58  Conn.  356)      .     .  120 

Wilson  V.  Martin- Wilson  (151  Mass.  515,  517)  15, 105, 106,  109,  146 

V.  Rankin  (129  N.  C.  447) 141,144 

V.  Webber  (2  Gray,  558,  561) 43,  70,  71,  75 

y.  Welch  (157  Mass.  77)       146 

Winchester  v.  Winchester  (121  Mass.  127,  128)    .     .  102,  103,  154 
Wineburg  r.  U.  S.  Steam,  &c.  Co.  (173  Ma.^^s.  60)     ...     .       12 

Wing  y.  Fairhaven  (8  Cush.  363,  364) 122,12:] 

Winslow  y.  Nayson  (113  Mass.  410,  411)      .     .     .     .122,124,131 

Woodbury  v.  Luddy  (14  Allen,  1)        101 

Wooden  v.  Morris  (3  N.  J.  Eq.  65) 49 

Woods  V.  Morrell  (1  Johns.  Ch.  104,  107) 61 


Xxiv  TABLE    OF    CASES    CITED 

Page 

"Woodward  v.  Phillips  (14  Gray,  132) 160 

Woodworth  v.  Spring  (4  Allen,  o21) 31 

Wormley  v.  Wormley  (69  N.  E.  865) 120 

Wortliington  w.  Scribner  (109  Mass.  487) 75 

V.  Waring  (157  Mass.  421,  423,  427,  429)  ...  4,  13,  39,  149 
Wright  V.  Dame  (1  Met.  241) 48 

r.  Wriglit  (13  Allen,  207,  209) 89,145 

Wyatt  V.  People  (17  Col.  261) 130 


PLEADINGS   IN  EQUITY 


THE   BILL 


It  is  not  now  —  if  it  ever  was  —  necessary  to 
allege  in  the  bill  that  the  plaintiff  cannot  have 
relief  at  law,  or  that  he  can  only  have  it  in  equity  ; 
but  whatever  may  be  the  object  of  the  bill,  the  first 
and  fundamental  rule,  always  to  be  observed,  is, 
that  it  must  state  a  case  within  the  appropriate 
jurisdiction  of  a  court  of  equity.  Story's  Equity 
Pleading,  §  lO.i 

This,  however,  does  not  mean  that  it  must  appear 
that  the  jurisdiction  of  the  court  of  equity  is  ex- 
clusive, for  there  are  many  causes  or  subjects 
where  it  is  concurrent  with  a  court  of  common 
law.  JVash  v.  McCathern,  183  Mass.  345  ;  Billin<is 
V.  Mann,  156  Mass.  203;  Nathan  v.  Nathan,  166 
Mass.  295;  Driscoll  v.  Smith,  184  Mass.  223; 
Wilkinson  v.  Stitt,  175  Mass.  581 ;  Weeks  v. 
Currier,  172  Mass.  53. 

1  References  to  Story's  Equity  Pleading  are  to  the  tenth 
edition,  and  references  to  Daniell's  Chancery  Pleading  and 
Practice  are  to  the  sixth,  or  Gould's,  edition. 

1 


2  PLEADINGS    AND    PRACTICE   IN    EQUITY 

Jurisdiction  in  equity  is  exclusive  when  it  exists 
solely  by  reason  of  the  nature  of  the  subject-matter 
of  the  controversy ;  among  the  most  familiar  of 
such  subjects  are  those  involving  the  preservation 
and  enforcement  of  trusts,  relating  to  equitable 
liens,  specific  performance,  dissolution  of  and 
rights  in  copartnerships,  equities  of  redemption, 
and  other  purely  equitable  rights  or  interests  not 
cognizable  or  enforcible  in  a  court  of  common  law. 

Jurisdiction  is  concurrent  in  courts  of  equity 
and  common  law  where,  though  a  remedy  can 
be  had  in  a  court  of  law  in  money  damages,  com- 
plete justice  may  require  the  peculiar  relief —  such 
as  specific  performance  or  injunction  or  otherwise 
—  which  a  court  of  equity  only  can  give.  That  a 
remedy  in  many  cases  of  deceit,  fraud,  nuisance, 
and  trespass  may  be  had  in  equity,  or  in  an  action 
at  law,  is  familiar.  1  Poraeroy's  Equity  Jurispru- 
dence, 2d  ed.,  §  137  et  seq}     Stratton  v.  Hernoyi^ 

^  "Exclusive  jurisdiction,  in  equity,  includes  all  civil 
causes  based  upon  equitable  estates  or  interests  and  rights 
in  property,  as  the  subject-matter  of  the  suit."  §  137.  .  .  . 
"  Concurrent  jurisdiction  in  equity  embraces  all  those  civil 
cases  in  which  the  primary  right,  interest,  or  estate  of  the 
complaining  party  sought  to  be  maintained,  enforced,  or 
redressed  is  one  which  is  cognizable  by  the  law,  and  in 
which  the  remedy  is  also  of  the  same  as  that  administered 
under  the  like  circumstances  by  the  courts  of  law."  §  13!J. 
Colt  V.  Woolaston,  2  P.  Wms.  154,  was  a  bill  to  recover 
money  which  had  been  obtained  by  a  fraud.  The  Master  of 
the  Rolls  said:  "  It  is  no  objt^ction  that  the  parties  have  their 
remedy  at  law  and  may  bring  an  action  for  moneys  had 


THE    BILL  3 

154  :\rass.  810 ;  Billings  v.  3Iann,  156  Mass.  203 ; 
Merwin  in  Equity,  26-59;  Taylor  v.  Taylor^  74 
Me.   582. 

And  where  either  court  —  law  or  equity  —  has 
exclusive  jurisdiction,  the  other,  of  course,  can- 
not acquire  it  by  consent  or  agreement  of  the 
parties;  but  where  the  jurisdiction  is  concurrent 
in  said  courts,  and  a  suit  is  brought  in  equity, 
the  objection  by  the  defendant  that  it  should 
have  been  brought  in  a  common  law  court,  must, 
to  be  of  any  avail,  be  made  in  limine^  or  at  a  very 
early  stage  of  the  case.  Haskell  v.  Merrill^  179 
Mass.  120;  Mass.  Hospital  Life  Ins.  Co.  v.  State 
Mutual  Ins.  Co..,  4  Gray,  227;  Whiting  v.  BurJc- 
hardt,  178  Mass.  535 ;  Perego  v.  Bodge,  163  U.  S. 
166. 

"  Without  delay  and  at  the  earliest  opportunity.  " 
Bearth  v.  Hide  ^  Leather  Nat.  Bank,  100  Mass. 
543. 

And,  in  order  to  sustain  an  objection  to  the 
jurisdiction  of  a  court  of  equity  on  the  ground 
that  there  is  a  remedy  at  law,  it  must  appear  that 
no  substantial  and  essential  part  of  the  case  is 
within  the  appropriate  jurisdiction  of  that  court. 
For  if  any  part  of  the  case  is  within  such  appro- 

and  received  for  the  plaintiff's  use  :  for  in  cases  of  fraud  the 
court  of  equity  has  a  concurrent  jurisdiction  with  the  com- 
mon law,  matters  of  fraud  being  the  subject  of  relief  here. 
Accordingly  cases  of  this  nature  have  frequently  met  with 
relief  in  this  court." 


4  PLEADINGS   AND    PRACTICE   IN   EQUITY 

priate  jurisdiction  of  a  court  of  equity,  that  court, 
having  taken  cognizance  of  the  case  for  such 
part,  will  retain  it  and  determine  the  whole  case. 
Worthington  v.  Waring,  157  Mass.  429;  Bartlett 
V.  Parks,  1  Cush.  82;^  1  Pomcroy's  Equity  Juris- 
prudence, 2d  ed.,  §  223. 

"Speaking  generally,  jurisdiction  in  equity  is 
fixed  if  the  plaintiff  is  entitled  to  relief  at  the 
time  of  the  bringing  of  the  bill;  and  the  court 
will  retain  the  bill  and  administer  a  remedy  in 
damages,  if  that  is  appropriate,  where  the  plain- 
tiff loses  his  right  pendente  lite  to  purely  equi- 
table relief  without  fault  on  his  part  through  some 
action  on  the  part  of  the  defendant."  Lexington 
Print  Works  v.  Canton,  171  Mass.  416. 

And  in  cases  which  are  within  the  jurisdiction 
of  either  court  —  law  or  equity  —  the  ordinary  rule 
is  "that  the  court  which  first  acquires  jurisdiction 
must  decide  the  case."  JYash  v.  McCatliern,  183 
Mass.  345,  347 ;  Smith  v.  M'lver,  9  Wheat.  532. 

1  "  When  equity  has  jurisdiction  for  one  purpose,  it  ^vill 
go  on  and  do  complete  justice  between  the  parties,  and  will 
not  send  them  to  a  court  of  law  because  part  of  the  relief 
may  be  purely  legal  relief."  Holden  v.  Holden,  24  111.  App. 
117.  The  court  whose  process  is  first  served  obtains  juris- 
diction of  all  questions  which  flow  out  of  the  subject-matter. 
U.  Mut.  L.  Ins.  Co.  v.  Univer.  of  Chicago,  6  Fed.  Rep.  443. 
For  the  reason  why  the  words  "  when  -the  parties  have  not 
a  plain,  adequate,  and  complete  remedy  at  the  common 
law,"  in  §  2,  c.  150,  Pub.  Stats,  do  not  appear  in  the  Revised 
Laws,  see  Report  of  the  Commissioners  for  Consolidating 
the  Public  Statutes  (1901),  p.  13G4,  note  3. 


THE   BILL  5 

And  this  is  true  also  of  the  federal  courts  and 
the  State  courts ;  so  that,  "  when  either  has  taken 
jurisdiction  of  a  res,  it  is  as  much  withdrawn  from 
the  other  as  if  it  had  been  carried  physically  into 
the  other  territoi-ial  sovereignty."  Covell  v.  Hey- 
man,  111  U.  S.  176 ;  Harkrader  v.  Wadley,  172 
U.  S.  164 ;  Gregory  v.  Merchant  Nat.  Bank,  111 
Mass.  67. 

And  the  remedy  at  law  which  precludes  relief 
in  equity  must  be  "as  practical  and  efficient  to 
the  ends  of  justice  and  its  prompt  administration 
as  the  remedy  in  equity."  Holden  v.  Hoyt,  IS-t 
Mass.  185;  Rice  v.   Wlnslow,  182  Mass.  273.^ 

Jurisdiction  in  equity  attaches  unless  the  legal 
remedy  both  in  respect  to  the  final  relief  and  the 
mode  of  obtaining  it  are  as  efficient  as  the  remedy 
which  equity  would  confer  under  the  same  cir- 

^  Criticisms  of  tVie  Massachusetts  rule,  which  allows  a 
defendant  to  waive  an  objection  which  he  might  make  to 
jurisdiction  in  equity,  are  logical  enough  if  based  upon  the 
assumption  that  parties  cannot  confer  jurisdiction  upon  a 
court  which  the  law  does  not  give  ;  but  such  assumption 
begs  the  question.  The  rule,  as  to  practical  results,  is  sat- 
isfactory. It  allows  parties  to  extend  the  beneficent  rules 
of  equity  to  causes  which  could  not  otherwise  be  done.  And 
the  disposition  is  to  extend  them  still  further,  as  shown  in 
allowing  equitable  defences  and  interpleaders  in  actions  at 
law.  Section  11  of  the  Supreme  Court  of  Judicature  Act 
of  England  provides  that,  "  Generally  in  all  matters  not 
hereinbefore  particularly  mentioned,  in  which  there  is  any 
conflict  or  variance  between  the  rules  in  equity  and  the 
rules  of  the  common  law  with  reference  to  the  same  mattei', 
the  rules  in  equity  shall  prevail." 


6  PLEADINGS    AND    PRACTICE   IN   EQUITY 

cumstances.      Kilhourn  v.   Sunderland,  130  U.  S. 
514. 

"The  forbearance  which  courts  of  co-ordinate 
jurisdiction,  administered  under  a  single  system, 
exercise  towards  each  other,  whereby  conflicts  are 
avoided,  is  a  principle  of  comity,  with  perhaps  no 
higher  sanction  than  the  utility  which  comes  from 
concord;  but  between  State  courts  and  those  of 
the  United  States  it  is  something  more.  It  is  a 
principle  of  right  and  of  law,  and  therefore  of 
necessity.  It  leaves  nothing  to  discretion  or 
mere  convenience."  Covell  v.  Rei/man,  111  U.  S. 
182;  Burgess  v.  Seligman,  107  U.  S.  20. 

After  all,  it  has  to  be  said,  that  not  as  much  as 
formerly  depends  upon  whether  in  any  case  in  the 
first  instance,  a  remedy  is  sought  in  an  action  at 
law,  or  relief  in  a  suit  in  equity,  since  to  save  de- 
feat one  may  be  amended  into  the  other.  R.  L., 
c.  159,  §  6.  But  this  is  not  always  easily  done, 
and  usually  results  in  embarrassment,  delay,  and 
costs. 

A  federal  court  will  not  enjoin  proceedings  in 
a  State  court,  "except  in  cases  where  such  in- 
junction may  be  authorized  by  any  law  relating 
to  proceedings  in  bankruptcy. "  U.  S.  Rev.  Stats., 
§  720.  See  In  re  Watts  and  Sachs,  Petitioners,  190 
U.  S.  1.  Suits  in  equity  may  be  brought  in  any 
county  in  which  a  transitory  action  between  the 
same  parties  might  be  brought.  R.  L.,  c.  159,  §  5. 
Dart/,  Ad7nr.  v.   Kane,  158  Mass.   376. 


THE    BILL  7 

The  Stating  Part  of  the  Bill. 

"The  material  facts  and  circumstances  which 
are  relied  on  by  the  plaintiff  shall  be  stated  with 
brevity,  and  immaterial  and  irrelevant  matters 
shall  be  omitted."     R.  L.,  c.  159,  §  12. 

No  necessary  allegation  can  be  supplied  by  in- 
ference. If  the  stating  part  of  the  bill  shows  no 
ground  for  relief,  it  cannot  be  enlarged  by  the 
terms  of  the  prayer.  Buslinell  v.  Avery^  121 
Mass.  148. 

"The  stating  part  of  the  bill  must  contain  the 
plaintiff's  case  and  his  title  to  relief;  and  every 
necessary  fact  must  be  distinctly  and  expressly 
averred,  and  not  in  a  loose  and  indeterminate 
manner,  to  be  explained  by  inference  or  by  refer- 
ence to  other  parts  of  the  bill.  "  Stevens  v.  Hay  den, 
129  Mass.  322;   Clark  v.  Lee,  185  Mass.  223. 

And  the  pleader  should  ever  bear  in  mind,  that 
the  strength  of  a  statement  is  more  in  the  clear 
and  positive  than  in  the  superlative  or  rhetorical 
style  of  it. 

In  stating  a  case  of  fraud,  it  is  necessary  to 
state  the  facts,  acts,  and  conduct  on  which  the 
fraud  is  predicated.  Nichols  v.  Mosenfeld,  181 
Mass.  525;  Merrill  v.  Washburn,  83  Me.  189; 
St.  Louis  Ry.  Co.  v.  Johnston,  133  U.  S.  577. 

"The  words  'traud  '  and  'conspiracy  '  alone,  no 
matter  how  often  repeated  in  a  pleading,  cannot 
make  a  case  for  the  interference  of  a  court  of 


8  PLEADINGS   AND   PRACTICE   IN   EQUITY 

equity.  Until  connected  with  some  specific  acts, 
for  which  one  person  is  in  law  responsible  to 
another,  they  have  no  more  effect  than  other 
words  of  unpleasant  signification."  Ambler  v. 
Chateau,  107  U.  S.  586 ;  i  An  allegation  of  con- 
spiracy may  be  a  proper  mode  of  alleging  a  joint 
action ;  but  for  any  other  purpose  it  is  wholly  im- 
material."    May\.   Wood,  112  Mass.    11. 

General  charges  of  fraud,  misconduct,  breaches 
of  trust,  &c.,  are  not  sufficient  allegations  of  facts, 
but  are  merely  only  conclusions  which  are  not  ad- 
mitted by  demurrer.  Garst  v.  Hall  ^  Lyon  Co., 
179  Mass.  590;  Fogg  v.  Blair,  139  U.  S.  118; 
Nichols  V.  Rogers,  139  Mass.  146;  JVge  v.  Storer, 
168  Mass.  55. 

Of  certain  allegations.  Holmes,  C.  J.,  said, 
"They  are  a  discrediting  summary  of  a  general 
state  of  mind,  but  do  not  allege  the  necessary 
specific  intent." 

"The  averment  in  a  bill  that  the  defendant  had 
no  right  to  do  certain  things,  and  that  they  are 
beyond  the  corporate  powers,  are  statements  of 
conclusions  of  law,  and  they  go.  for  nothing 
unless  the  conclusions  follow  from  the  facts 
stated."  Messerx.  Grand  Lodge,  ^c,  180  Mass. 
323. 

"In  this  court  in  equity,  a  charge  of  fraud  is 
regarded  as  something  more  serious  than  a  rhe- 

1  "  Epithets  do  not  make  out  fraud."  Fuller,  C.  J.,  in 
Kent  V.  Lake  Sup.  Canal  Co.,  144  U.  S.  91. 


THE    BILL  y 

torical  embellishment,  and  if  a  man  puts  his  case 
on  that  ground,  he  must  maintain  it  on  that 
ground  or  lose  it."  Holmes,  C.  J.,  in  Nichols  v. 
Mosenfeld,  181  Mass.  525. 

"The  bill  should  state  fully  and  explicitly  the 
circumstances,  so  as  to  present  a  clear  picture  of 
the  particulars,  —  of  how  the  fraud  was  committed, 
how  the  plaintiff  was  misled,  or  of  the  character 
and  causes  of  the  accident  or  mistake,  and  how 
it  occurred."     Merrill  v.   Washburn^  83  Me.  189.^ 

The  bill  may  be  drawn  with  a  double  aspect, 
so  that  if  the  plaintiff  fails  on  one  ground,  he 
may  rely  upon  another,  but  a  bill  so  drawn  must 
be  consistent  with  itself.  Gerrish  v.  Tourne,  3 
Gray,  80. 

But  a  plaintiff  may  be  excused  from  stating 
with  proper  details  and  particularities  his  claim, 
if  it  is  alleged,  and  it  appears,  that  the  documents 
and  papers  containing  the  evidence  of  such  details 
are  in  the  hands  of  the  defendant,  who  refuses  to 
permit  the  plaintiff  to  examine  them.  Toivle  v. 
Fierce,  12  Met.  329. 

A  bill  to  compel  specific  performance  of  an 
agreement  to  convey  land  need  not  allege  that 
the  agreement  is  in  writing  ;  though  if  it  appears 

1  "The  old  system  of  pleading  at  common  law  was  to 
conceal  as  much  as  po.ssible  what  was  going  to  be  proved 
at  the  trial ;  but  under  the  present  system  it  is  our  duty  to 
see  that  a  party  so  states  his  case  that  his  opponent  will  not 
be  taken  by  surprise."  Spedding  v.  Fitzpatrick,  38  Ch. 
Div  410,  414. 


10  PLEADINGS    AND   PRACTICE    IN    EQUITY 

that  it  is  not,  it  will  be  demurrable.  Putnam  v. 
Grace,  161  Mass.  237. 

An  allegation  that  the  plaintiff  "is  informed" 
or  "believes,"  or  "is  informed  and  believes," 
that  a  fact  exists,  is  not  a  sufficient  allegation 
that  the  fact  does  exist. ^  But  an  allegation  that 
the  plaintiff  "is  informed  and  believes,"  and 
therefore  avers  the  existence  of  the  fact,  may 
be  sufficient.  Story's  Eq.  PI.,  §  241,  note;  Fletch- 
er's Eq.  PI.  &  Pr.  135  ;  Messer  v.  Storer,  79  Me. 
512. 

The  existence  of  the  plaintiff's  title  in  the 
property  which  is  the  subject-matter  of  the  suit, 
should  be  stated  positively,  and  not  upon  informa- 
tion and  belief;  because  he  is  supposed  to  know 
the  facts  as  to  his  own  title.  Story's  Eq.  PL, 
§  255. 

The  bill  must  show: 

1.  That  the  plaintiff  has  a  present  existing 
interest  in  the  subject-matter  of  the  suit.^ 

2.  That  he  is  entitled  to  relief  upon  the  facts. 

3.  That  the  defendant  is  the  party  of  whom 
such  relief  can,  at  that  time,  be  had. 

1  A  common  law  rule  .  .  .  which  requires  a  petition  to 
be  "  verified  by  affidavit,"  is  not  complied  with  by  a  jurat 
that  it  is  true  according  to  the  best  of  the  affiant's  "knowl- 
edge, information,  and  belief."  Hadley  v.  Watson,  143 
Mass.  27. 

-  This  interest  must  be  a  vested  interest  though  the  enjoy- 
ment of  it  is  remote  and  contingent.  Daniell  Ch.  PL  &  Pr., 
§317. 


THE   BILL  11 

In  a  bill  to  reach  and  apply,  brought  under  cl. 
7,  s.  3,  c.  159,  R.  L.,  it  is  necessary  to  set  out 
the  cause  of  action  —  the  plaintiff's  claim  —  as 
specifically  as  is  rc(]uired  in  a  declaration  at  law. 
Sandford  v.    Wright,  164  Mass.  85. 

In  an  equitable  attachment  of  a  debt  due  to  the 
defendant,  the  bill  should  contain  a  description  of 
the  debt  and  the  name  of  the  party  who  owes  it. 
A77ii/  V.  Manning,  149  Mass.  487. 

A  bill  to  collect  a  stale  demand  should  state 
specifically  the  reasons  and  facts  why  the  suit  was 
not  begun  before.  Le  Gendre  v.  Byrnes,  44  X.  J. 
Eq.  372;  Mackall  v.  Casilear,  137  U.  S.  556.1 

For  the  allegations  necessary  in  a  bill  in  equity 
by  stockholders  against  officers  of  a  corporation 
for  fraud,  misconduct,  <fcc.,  see  Thompson's  Cases 
on  Eq.  PL  213.  "The  bill  must  show  that  suit- 
able redress  is  not  attainable  through  the  cor- 
poration."    Breiver  v.  Boston  Theatre,  104  Mass. 

^  "  A  court  of  equity,  which  is  never  active  in  relief 
against  conscience  or  public  convenience,  has  always  refused 
its  aid  to  stale  demands,  where  the  party  has  slept  upon  his 
rights,  and  acquiesced  for  a  great  length  of  time  —  nothing 
can  call  forth  this  court  into  activity,  but  conscience,  good 
faith,  and  seasonable  diligence."  Lord  Camden  in  Smith 
r.  Clay,  3  Brown,  Ch.  639.  In  AVillard  ;•.  Wood,  164  U.  S. 
524,  the  court  said,  "  the  recognized  doctrine  of  courts 
of  equity  to  withhold  relief  from  those  who  have  delayed 
the  assertion  of  their  claims  for  an  unreasonable  length  of 
time,  may  be  applied  in  the  discretion  of  the  court  even 
though  the  laches  are  not  pleaded,  or  the  bill  demurred  to." 


12  PLEADINGS   AND    PRACTICE    IN    EQUITY 

378;  Blair  v.  Telegram  Neivspaper  Co.^  172  Mass. 
201;  Dunphyx.  Traveller N.  Assn.,  146  Mass.  495; 
Richardson  v.  C.  W.  T.  Co.,  181  Mass.  580. 

It  is  not  enough  to  enable  a  stockholder  to 
bring-  a  bill  to  enforce  in  behaU'  of  a  corporation 
the  rights  which  if  successful  will  enure  to  the 
corporation,  to  make  a  naked  request  that  such 
a  bill  should  be  brought  without  submitting  to 
the  directors  the  facts  on  which  it  could  be 
brought.  Doherty  v.  Mercantile  Trust  Co.,  184 
Mass.  590;  see  Winehurgh  v.  U.  S.  Steam  Co., 
173  Mass.  60. 

If  a  bill  is  brought  by  a  few  in  behalf  of  them- 
selves and  others  it  should  so  state.  Story's  Eq. 
PL,  §  126. 

It  is  not  now  necessary  that  the  bill  contain 
any  prayer  for  an  answer  or  for  general  relief,  or 
for  process.     R.  L. ,  c.  159,  §  12. 

"The  bill  is  to  be  interpreted  as  though  it  con- 
tained a  prayer  for  relief."  Ham3I0ND,  J.,  in 
Allen  V.  French,  180  Mass.  489.  A  bill  should 
not  be  dismissed  simply  because  the  form  of 
relief  prayed  for  cannot  be  given,  if  it  appears 
that  some  equitable  relief  can  and  should  be 
given.      Nudd  v.  Poicers,  136  Mass.  273. 

But  it  is  not  probable  that  an  injunction  would 
be  granted  in  any  bill  until  after  hearing  on  the 
merits  —  unless  specifically  prayed  for;  though 
after  such  hearing  it  may  be.  Thompson  v. 
Heywood,   129  Mass.   401. 


THE    BILL  13 

Excepting  in  cases  where  a  power  has  been  ex- 
pressly conferred  on  the  court  of  equity  for  some 
specific  purpose,  it  has  to  do  only  with  property 
or  property  rights. 

"A  chancellor  has  no  criminal  jurisdiction." 

"It  is  well  known  that  equity  has,  in  general, 
no  jurisdiction  to  restrain  the  commission  of 
crimes,  or  to  assess  damages  for  torts  already 
committed.  Courts  of  equity  often  protect  prop- 
erty from  threatened  injury  when  the  rights  of 
property  are  equitable,  or  when,  although  the 
rights  are  legal,  the  civil  and  criminal  remedies 
at  common  law  arc  not  adequate."  Field,  C.  J., 
in   Worthington  v.    Waring^  157  Mass.  423. 

"The  office  and  jurisdiction  of  a  court  of 
equity  —  unless  enlarged  by  express  statute  — 
are  limited  to  the  protection  of  the  rights  of  prop- 
erty. It  has  no  jurisdiction  over  the  prosecution, 
the  punishment,  or  the  pardon  of  crimes  or  mis- 
demeanors, or  over  the  appointment  or  removal 
of  public  officers."     In  re  Saivyer,  124  U.  S.  200. 

Yet  the  fact  that  a  threatened  act  or  proceed- 
ing will,  if  carried  into  execution,  l)e  a  crime,  and 
punishable  by  other  tribunals,  is  not  sufficient 
reason  why  a  court  of  equity  should  decline  to 
enjoin  such  act  or  proceeding,  if  the  property 
interests  of  private  persons  will  be  put  in  jeop- 
ardy of  serious  injury.  In  re  Debs,  Petitioner,  158 
U.  S.  564,  and  cases  cited. 

"The   fact   that  maintainino;   a   nuisance   is  a 


14  PLEADINGS    AND    PRACTICE    IN    EQUITY 

crime  does  not  deprive  a  court  of  equity  of  the 
power  to  abate  the  nuisance.  "  Carleton  v.  Rugg, 
149  Mass.  554.  ^ 

"  So  it  is  not  within  the  general  powers  of  a 
court  of  equity  to  supervise  the  conduct  of  pub- 
lic officers  in  the  performance  of  their  official 
duties,  or  to  prohibit  them  from  acting  or  to 
compel  them  to  act  in  matters  which  pertain  to 
political  and  personal  rights  as  distinguished  from 
rights  of  property."  Larcom  v.  Olin,  160  Mass. 
110. 

But  "the  right  to  proceed  in  equity  to  abate 
public  nuisances,  and  to  destroy  private  property, 
in  the  exercise  of  the  police  power,  when  neces- 
sary for  the  protection  of  the  public,  has  been 
recognized  in  many  cases."  Carleton  v.  Rugg, 
149  Mass.  555. 

Formerly  the  court  in  equity,  in  Massachusetts, 
would  not  entertain  a  suit  involving  property  or 
property  rights  of  less  value  than  one  hundred 
dollars.      Cummings  v.  Barrett,  10  Cush.  186. 

But  property  (for  example,  a  silver  cup)  may 
have  a  value  apart  from  the  money  (-$60)  w^hich  it 
cost.      Wilkinson  v.  Stitt,  175  Mass.  581. 

But  suits  by  creditors,   "to  reach  and   apply" 

1  The  jurisdiction  in  equity  to  restrain  nuisances  "is 
not  on  the  ground  of  any  criminal  oifence  committed,  or 
for  the  purpose  of  giving  a  better  remedy  in  the  case  of 
a  criminal  offence  .  .  .  but  is  on  the  ground  of  injury  to 
property."     Atty.-Genl.  v.  Sheffield,  &c.,  3  D.  M.  &  G.  320. 


THE   BILL  15 

under  cl.  7,  §  3,  c.  159,  R.  L. ,  in  payment  of  a 
debt,  may  be  maintained,  "although  the  amount 
of  a  debt  is  less  than  one  hundred  dollars." 
R.  L.,  c.  159,  §  3,  cl.  7. 

Whether  such  suit  can  be  maintained  now  if 
the  debt  is  less  than  twenty  dollars  —  queers. 
Gale  V.  Nickerson,  151  Mass.  428;  Sandford  v. 
Wright,  164  Mass.  85. 

See  remarks  of  Gray,  C.  J.,  in  Chajjman  v. 
Banker   cj-    Tr.  Pub.  Co.,  128  Mass.  478. 

It  is  not  the  practice  to  entertain  a  bill  to  reach 
and  apply  under  cl.  7,  to  collect  a  debt  of  less 
than  fifty  dollars. 

Suits  to  reach  and  apply  under  cl.  7,  §  3,  of 
c.  159,  R.  L.,  are  not  cases  within  the  general 
principles  of  equity  jurisprudence.  Wilsoti  v. 
Mart  in- Wilson,  151  Mass.  517. 

The  equitable  jurisdiction  conferred  by  this 
cl.  7,  "  does  not  depend  upon  the  nature  of 
the  plaintiff's  debt,  or  cause  of  action, — but 
upon  the  existence  of  some  property,  or  right, 
which  cannot  be  come  at  to  be  attached  or  taken 
on  execution  at  law,"  and  this  jurisdiction  in 
equity  "is  limited  by  the  statute  to  such  property 
or  rights  as  can  neither  be  attached  or  taken  on 
execution  at  law. "  Schlesinger  v.  Sherman,  127 
Mass.  206. 

What  claims  are  included  and  what  are  not 
included  in  the  term  "  debt "  has  not  yet  been 
determined.     Claims   besides   judgments  are  in- 


16  PLEADINGS    AND    PRACTICE    IN    EQUITY 

eluded ;  on  the  other  hand,  it  is  understood  that 
"debts"  due  to  creditors  does  not  inchide  dam- 
ages for  torts,  or  probably  unliquidated  damages 
for  breaches  of  contracts  other  than  the  agree- 
ment "to  pay  a  certain  sum,  on  the  performance 
by  the  plaintiff  of  a  certain  act."  Draper  \.  Holl- 
ings,  163  Mass.  127;  Bennett  \.  Sweet,  171  Mass. 
600. 

In  Moore  v.  3IansJield,  182  Mass.  302,  it  is 
intimated  that  an  unascertained  amount  for  use 
and  occupation  is  not  such  a  "  debt. "  Mason,  C.  J., 
of  the  Superior  Court,  ruled  that  it  is  not.^ 

Bills  under  cl.  7,  §  3,  c.  159,  R.  L.,  are  really 
common  law  cases,  with  the  flexible  orders  of 
courts  of  e(iuity  to  reach  rights  and  interests  in 
property  which  cannot  be  levied  on  and  sold  by  a 
common  law  execution ;  which  orders  the  court 
in  equity  may  enforce  by  injunction.  So  that,  in 
Poivers  V.  Raymond,  137  Mass.  483,  it  was  held 
that  the  defendant  had  the  right  to  have  a  trial  by 
jury  of  the  main  question  of  his  alleged  indebted- 
ness to  the  plaintiff.  Merchants'  Nat.  Bank  v. 
Moulton,  143  Mass.   548. 

Nor  are  bills  under  this  cl.  7  "creditors'  bills," 
in  the  sense  of  those  words  in  ordinary  prac- 
tice in  courts  of  equity.      "Such  a  bill  is  in  the 

1  Jurisdiction  of  a  federal  court  to  reach  property 
fraudulently  conveyed  must  be  based  on  a  judgment,  not- 
withstanding a  State  statute,  authorizing  such  suit  without 
judgment.  Hollins  v.  Brierfield  C.  Co.,  150  U.  S.  371; 
Gates  V.  Allen,  149  U.  S.  451. 


THE    BILL  17 

nature  of  an  equitable  attachment  brought  Ijy 
a  single  creditor  for  his  own  benefit,  in  which 
other  creditors  cannot  be  admitted  to  join  as 
plaintiffs,  or  share  in  the  benefits  of  the  decree." 
Chapman  v.  Banker  ^  Tr.  Co.,  128  Mass.  478; 
Pettihone  v.  Toledo  II.  R.   Co.,  1-18  Mass.  411. 

The  power  in  equity  to  reach  "  })roperty  rights 
or  interests  "  is  limited  to  property  rights  or  in- 
terests which  "  cannot  be  come  at  to  be  attached 
or  taken  on  execution,"  and  is  also  limited  to 
such  legal  "  causes  "  for  the  suit  as  can  be  begun 
by  trustee  process,  enumerated  in  R.  L.,  c.  189, 
§  1,  and  also  it  does  not  extend  to  property, 
which,  under  R.  L.,  c.  163,  §  95,  is  "not  subject 
to  attachment  by  trustee  process  or  otherwise." 
Venahle  v.  Rickenherg,  152  Mass.  64.  But  see 
Haman  v.  Brennan,  170  Mass.  405. 

Whatever  the  property  or  interest  is,  which  the 
creditor  seeks  to  have  attached  and  applied,  &c., 
it  should  be  specifically  described.  Amy  v.  3fan- 
7iin(/,  149  Mass.  487. 

A  suit  under  cl.  8,  §  3,  c.  159,  R.  L.,  to  reach 
and  apply  in  payment  of  a  debt  any  property  right 
or  interest  "fraudulently  conveyed  by  the  debtor, 
with  intent  to  defeat,  delay,  or  defraud  his  credi- 
tors," must,  after  the  decease  of  the  fraudulent 
grantor,  be  brought  by  the  administrator  of  such 
grantor  and  not  by  the  creditor;  and  if  such 
administrator  refuses  to  do  so  after  an  offer  of 
indemnity,   he    should    be    removed   and    another 

2 


18  PLEADINGS    AND    PRACTICE    IN    EQUITY 

appointed  in  his  place.  Putney  v.  Fletcher,  148 
Mass.  247.  The  reason  for  this  being  that  the  es- 
tates of  deceased  persons  should  be  administered, 
"under  the  direction  and  supervision  of  the  Pro- 
bate Court.'' 

For  recent  cases  showing  what  property  rights 
or  interest  may  be  reached  and  applied  under  cl.  7, 
§  3,  c.  159,  see  under  Decrees,  p.  108. 

In  every  bill,  the  names  of  the  parties,  their 
residences,  and  the  capr.city  in  which  they  sue,  or 
are  sued,  should  be  stated  accurately. 

It  would  be  found  useful  to  state  at  the  outset 
the  object  of  the  bill.^ 

The  words  "  and  the  plaintiffs  say  "  need  not  be 
used.  The  statement  is  more  direct  and  stronger 
without  them. 

The  paragraphs  of  the  bill  (and  the  answer  also) 
should  be  numbered.  This  is  required  by  Equity 
Rule  4  of  the  Supreme  Court  of  Maine,  and  by 
the  rules  of  the  Supreme  Court  of  Judicature  of 
England. 

Suits  in  equity  "may  be  brought  in  any  county 
in  which  a  transitory  action  between  the  same 
parties  might  be  brought,  as  well  as  in  counties 
in  which  it  is  elsewhere  provided  that  such  suits 
may  be  brought."  R.  L.,  c.  159,  §  16;  Dary  v. 
Kane,  158  Mass.  376.     See  note  on  p.  94. 

^  That  is,  after  the  names  of  the  parties,  state  whether 
it  is  a  bill  to  redeem  —  to  dissolve  a  co-partnership  —  for 
specific  performance  —  to  reach  and  apply,  etc. 


THE    PARTIES  19 


THE   PARTIES 

One  of  the  chief  and  important  differences  be- 
tween actions  at  law  and  suits  in  equity  is  in  the 
matter  of  parties.  In  actions  at  law  only  the 
immediate  parties  to  the  dispute  can  be  parties. 
In  suits  in  equity  as  many  of  the  parties  —  if  not 
all  —  as  are  interested  in  the  subject-matter  as 
possible  shoidd  be  made  parties. 

"  The  general  rule  is  that  all  parties  interested 
in  the  subject-matter  of  a  suit  in  equity,  whether 
directly  and  immediately,  or  incidentally  and  re- 
motely, arc  to  be  made  parties,  so  that  complete 
justice  may  be  done  between  all  parties  interested, 
in  one  suit.  This  is  an  important  rule,  as  it  avoids 
multiplicity  of  actions,  and  enables  the  court  to  do 
justice  between  persons  having  conflicting  inter- 
ests, and  to  avoid  the  injurious  consequences  that 
might  follow  from  the  decision  of  a  cause,  grounded 
on  a  partial  consideration  of  its  real  merits." 
Ormse  et  al.  v.  Bahcock,  10  Met.  525  (1846). 

Gray,  C.  J.,  thirty  years  later,  referring  to  this 
rule  said :  "  This  general  rule  is  subject  to  some 
modifications,  at  the  discretion  of  the  court,  from 
considerations  of  convenience,  as,  for  instance, 
when  a  great  number  of  persons  is  interested,  or 


20  PLEADINGS    AND    PRACTICE    IN    EQUITY 

when  some  of  them  are  beyond  the  reach  of  the 
process  of  the  court,  and  the  case  can  be  deter- 
mined without  affecting  their  rights,  and  consist- 
ently with  equity  and  good  conscience,"  Cassidy 
V.  Shimmin,  122  Mass.  406. 

"That  all  parties  interested  in  the  subject-matter 
of  the  suit  should  be  made  plaintiffs  or  defendants 
is  too  broad  a  statement.  It  would  be  more  accu- 
rate to  say  that  all  parties  interested  in  the  object 
of  the  suit  must  be  made  parties."  Thomas,  J.,  in 
Michigan  S.  Bank  v.  Gardner,  8  Gray,  305. 

In  Cockhurn  v.  Thompson^  16  Yes.  329,  the  rule 
is  stated  as  follows  :  "  This  rule  that  all  who  are 
interested  should  be  made  parties,  being  a  rule  of 
propriety  and  convenience,  established  by  the  court, 
the  court  should  not  allow  it  to  become  an  instru- 
ment of  denial  of  justice  to  parties  before  the 
court,  who  are  entitled  to  relief." 

"  How  far  such  persons  (interested  in  the  subject- 
matter  of  the  suit)  should  be  made  parties  to  the 
suit,  depends  largely  upon  the  discretion  of  the 
court,  —  considering  on  the  one  hand  the  difficulty 
and  expense  of  joining  them,  and  on  the  other  the 
paramount  importance  of  having  such  a  representa- 
tion of  the  interests  concerned  as  may  enable  the 
question  at  issue  to  be  fully  tried."  Smith  v. 
Williams,  116  Mass.  510. 

But  if  there  is  any  person  who  has  such  an  inter- 
est that  he  ought  to  be  made  a  party,  and  is  not  a 
party,  the  reason  why  he  is  not  should  be  stated 


THE   PARTIES  21 

in  the  bill.  Palmer  v.  Stevens^  100  Mass.  461. 
Wilkinson  v.  Stitt^  175  Mass.  581.^ 

And  when  he  is  not  within  the  jurisdiction  or 
reach  of  the  court,  the  bill  should  so  state.  Toivle 
V.  Pierce,  12  Met.  329. 

There  are  cases  where  a  decree  can  be  entered 
which  will  affect  the  interests  of  those  who  are  not 
parties  to  the  bill.  That  is  where  a  suit  is  brought 
by  some  in  behalf  of,  or  against,  a  large  number  of 
others,  whose  interests  the  court  can  see  are  iden- 
tical with  those  named  in  the  bill.  Stevenson  v. 
Austin,  3  ^let.  474  ;  Davis  v.  Peahody,  170  Mass. 
397  ;  Libhy  v.  Norris,  142  Mass.  246 ;  Croivell  v. 
Cape  Cod  Ship  Canal  Co.,  164  Mass.  235. 

And  if  parties  who  ought  to  join  as  plaintiffs  in 
a  bill  refuse  to  do  so,  they  may  be  made  defend- 
ants; their  refusal  to  be  plaintiffs  being  stated  in 
the  bill.  1  Daniell's  Ch.  PI.  &  Pr.,  190,  note; 
Birmingham  v.  Gallagher  et  als.,  112  Mass.  190  ; 
Billings  v.  Mann,  156  Mass.  203. 

And  parties  having  conflicting  interests  should 
not  be  made  plaintiffs.  Parsons  x.  Lyman,  4 
Blatchford,  432.  And  where  a  plaintiff  who  is  a 
necessary  party  refuses  to  go  on,  and  moves  to  dis- 
miss the  cause  as  to  him,  the  court  would,  on 
motion  of  other  plaintiffs,  "  transpose"  him  to  the 

J  A  suit  in  equity  cannot  be  maintained  by  one,  or  in 
the  name  of  one,  for  the  sole  benetit  of  another.  Kellam  *;. 
Sayre,  30  West  Va.  198.     Crooker  v.  Rogers,  5S  Me.  339. 


22  PLEADINGS   AND    PRACTICE   IN    EQUITY 

other  side.  3Ic  Co7iaughey  v.  Bennetfs  Executors^ 
50  W.  A^a.  172. 

"  Equity  does  not  particularly  concern  itself 
with  determining  that  such  a  person  shall  be  plain- 
tiff, and  such  another  a  defendant,  but  rather 
requires  in  a  more  general  form  that  the  persons 
shall  be  parties,  so  as  to  be  bound  by  the  decree, 
and  is  in  general  satisfied  if  tliey  are  thus  brought 
before  the  court  either  as  plaintiffs  or  defendants." 
Ponieroy's  Rem.  &  Remedial  Rights,  2d  ed., 
§   248. 

Where  the  unexplained  absence  of  a  necessary 
party  appears  on  the  face  of  the  bill,  the  objection 
to  it  should  be  made  by  demurrer.  Palmer  v. 
Stevens.  100  Mass.  461. 

But  if  that  is  not  done,  the  objection  may  be 
made  by  plea  or  answer,  or  the  court  may  decline 
to  proceed  with  the  parties  before  it.  Schicoerer  v. 
Boyhton  Market  Assn.,  99  Mass.  285 ;  Robinson  v. 
Smith,  3  Paige  Ch.  (N.  Y.)  222. 

To  what  extent  a  decree  may  bind  parties  not 
before  the  court.     See  Beach,  Mod.  Eq.  Pr.,  §  66. 

The  47th  Rule  in  Equity  of  the  Supreme  Court 
of  the  United  States  is:  "In  all  cases  where  it 
shall  ap})ear  to  the  coui-t  that  persons,  who  might 
otherwise  be  deemed  necessary  or  proper  parties  to 
the  suit,  cannot  be  made  parties  .by  reason  of  their 
l)eing  out  of  the  jurisdiction  of  the  court,  or  in- 
capable otherwise  of  being  made  parties,  or  because 
their  joinder   would   oust  the  jurisdiction  of  the 


THE    PARTIES  23 

court  as  to  the  parties  before  the  court,  the  court 
may  in  their  discretion  proceed  in  the  cause,  with- 
out making  such  persons  parties ;  and  in  such 
cases  the  decree  shall  be  without  prejudice  to  the 
rights  of  the  absent  parties." 

The  Supreme  Court  of  the  United  States  has  con- 
sidered parties  in  suits  in  equity  as  divisible  into 
three  classes :  First,  formal  parties,  who  have 
no  interest  in  the  controversy,  though  they  may 
have  indirectly  in  the  subject-matter ;  second, 
necessary  parties,  who,  though  having  an  interest 
in  the  controversy,  have  interests  so  separable 
from  those  before  the  court  that  a  decree  may  be 
entered  without  injuriously  affecting  their  interests  ; 
third,  indispensable  parties,  who  have  such  inter- 
ests in  the  controversy  that  a  final  decree  cannot 
be  made  without  affecting  their  interest.  Minne- 
sota V.  Northern  Securities  Co.,  184  U.  S.  199. 

As  a  rule  partners,  joint  owners,  tenants  in 
common,  and  all  others  who  have  a  community  of 
interest  in  the  subject-matter  of  the  suit,  should  be 
made  parties  to  it.     May  v.  Parker,  12  Pick.  34. 

As  a  rule,  suits  by  or  against  partners  all  must 
be  parties  to  the  suit  as  plaintiffs  or  defendants. 
Fou'le  V.  Torrey,  131  Mass.  289. 

But  in  a  suit  brought  by  one  of  four  partners 
against  one  only  of  the  other  three  for  an  account, 
(fee,  where  it  was  alleged  that  the  other  two  were 
not  within  the  jurisdiction  of  the  court ;  that  all 
the  others  had   received   their  full   share  of   the 


24  PLEADINGS    AND    PRACTICE    IN   EQUITY 

partnership  effects ;  and  that  the  defendant  had 
received  much  more  than  his  share  and  the  plain- 
tiff less  ;  a  demurrer  to  the  bill  for  nonjoinder  of 
the  other  partners  as  defendants,  was  overruled. 
Toivle  V.  Pierce,  12  Met.  329. 

An  exception  to  the  general  rule  seems  to  exist 
now  in  R.  L.,  ch.  73,  §  85,  which  provides  that  — 
"Joint  payees  or  joint  indorsees  —  of  a  negotiable 
instrument  —  who  indorse,  are  deemed  to  indorse 
jointly  and  severally." 

In  suits  respecting  trusts  and  trust  property, 
brought  by  or  against  the  trustee,  the  cestui  que 
trusts  are  necessary  parties  if  the  suit  affects  the 
relations  of  the  cestui  que  trust  with  the  trustee. 
Sears  v.  Hardy,  120  Mass.  524. 

But  where  the  suit  is  brought  by  a  stranger  to 
set  aside  the  trust  deed  or  instrument  as  fraudulent 
and  void,  on  the  ground  of  a  title  of  the  plaintiff 
which  antedates  the  creation  of  the  trust,  or  where 
the  suit  is  by  the  trustee  to  recover  the  trust 
property,  it  is  enough  that  the  holders  of  the  legal 
estate  in  the  property  are  parties  without  joining 
the  cestui  que  trusts.  Vetterlein  v.  Barnes,  124 
U.  S.  169  ;  Ashton  v.  Atlantic  Bank,  3  Allen,  217. 

In  suits  against  officers  of  a  corporation,  the  cor- 
poration should  be  a  party.  Price  v.  Minot,  107 
Mass.  49;  Pojje  v.  Leonard,  115  Mass.  286  ;  Allen 
V.  Turner,  11  Gray,  436 ;  Lyman  v.  Bonney,  101 
Mass.  562 ;  Elkins  v.  Camden  By.  Co.,  36  N.  J. 
Eq.  241;  Deerfield  v.  Nims,  110  Mass.  115. 


THE    PARTIES  25 

The  corporation  is  a  necessary  party  to  a  bill  by 
a  creditor  of  the  corporation  against  its  officers  or 
stockholders,  who  have  divided  the  assets  among 
themselves.     Deerfield  v.  Nims^  110  Mass.  115. 

Or  to  a  bill  involving  a  question  of  ultra  vires. 
Price  V.  Minot,  107  Mass.  49. 

Or  to  any  bill  which  affects  its  corporate  rights 
or  liabilities.  St.  Louis  ^  S.  F.  Ry.  Co.  v.  Wilson, 
114  U.  S.  60. 

A  town  must  be  a  party  to  a  bill  against  the 
treasurer  for  paying  out  money  on  a  vote  to  pay  it 
out  for  illegal  purposes.  Allen  v.  Turner,  11  Gray, 
436. 

But  in  Attorney-General  v.  Williams,  178  Mass. 
330,  it  was  held  that  the  city  of  Boston  was  not  a 
necessary  or  proper  party  to  the  suit,  to  remove  a 
portion  of  "The  Westminster"  building,  though 
the  city  was  lia!)le  to  the  defendants  —  the  owners 
—  for  such  damages  as  they  might  sustain  by  such 
removal. 

In  a  bill  to  set  aside  a  conveyance  to  a  fraudulent 
grantee,  a  bona  fide  mortgagee  of  such  grantee  is  a 
proper  party.      Whittemore  v.  Coivell,  7  Allen,  446. 

Parties  who  are  interested  in  different  kinds  of 
property,  real  and  personal,  who  have  been  de- 
frauded by  one  general  scheme  of  fraud  may  join 
as  plaintiffs  in  a  bill  to  recover  their  interests. 
Parker  v.  Simpson,  180  Mass.  334  ;  Sherman  v.  Am. 
Stove  Co.,  85  Mich.  169. 

As  to  the  proper  parties  in  a  bill  to  redeem 


26  PLEADINGS    AND    PRACTICE   IN    EQUITY 

from  mortgage,  see  R.  L.,  ch.  187,  §  18.  Emerson 
V.  Atkinson,  159  Mass.  356  ;  Pierce  v.  LeMonier, 
172  Mass.  508  ;  Lamh  v.  Montague,  112  Mass. 
352;  Ashburner,  Prin.  of  Equity,  p.  282  (1902). 

A  mortgagee  of  an  estate  on  which  there  is  a 
party  wall  should  be  made  a  party  in  a  suit  seek- 
ing the  removal  of  such  wall.  Everett  v.  Edwards, 
149  Mass.  588. 

A  mesne  assignee  of  a  mortgage,  who  has  parted 
with  his  interest  by  assignment  of  the  mortgage,  is 
not  a  necessary  party  to  a  bill  to  redeem,  if  he  has 
received  no  rents  or  profits.  Lenyion  v.  Porter,  2 
Gray,  473. 

But  when  the  mortgagor  had  worked  for  the 
mortgagee  who  had  agreed  to  apply  his  wages  in 
payment  of  the  mortgage  debt,  but  had  not  done 
so,  the  mortgagee,  though  he  had  assigned  the 
mortgage,  was  a  proper  party  defendant.  Doody 
V.  Pierce,  9  Allen,  141. 

A  promisee  named  in  a  written  contract,  who 
has  transferred  it  orally  but  unconditionally,  need 
not  be  made  a  party  in  a  suit  to  enforce  it ;  there 
being  no  right  or  liability  in  him  which  can  be  affect- 
ed by  the  decree.     Currier  v.  Hoivard,  14  Gray,  511. 

In  a  bill  brought  by  a  vendee  for  specific  perform- 
ance of  an  agreement  made  by  a  deceased  vendor, 
the  defendant,  by  statute,  may  bQ  the  executor  or 
administrator  of  the  vendor.  R.  L.,  ch.  148,  § 
1  ;  Eynes  v.  Hayden,  119^  Mass.  482. 

A  husband  may  —  but  it  is  not  necessary  that 


THE   PARTIES  27 

he  should  —  join  his  wife  in  a  suit  in  equity 
relating  to  her  separate  property.  Forbes  v.  Tuck- 
erman,  115  Mass.  115. 

The  administrator  is  the  proper  party  to  bi-ing  a 
bill  to  recover  personal  property  conveyed  by  the 
deceased  to  defraud  his  estate,  widow,  or  heirs,  and 
''  if  the  administrator  proves  to  be  unsuitable  for 
that  purpose,  he  may  be  removed  and  another 
appointed  in  his  place."  Flynn  v.  Flynn^  183 
Mass.  365. 

A  bill  may  be  maintained  by  a  wife  against  her 
husband  to  recover  her  property  obtained  from  her 
by  his  fraud  and  coercion.  Frankel  v.  Frankel,  173 
Mass.  214. 

In  a  bill  to  establish  a  trust  in  a  bank  deposit 
the  depositor  is  a  necessary  party.  G-regory  v. 
Bank,  171  Mass.  67. 

In  a  bill  to  reach  and  apply  the  equitable  inter- 
est of  the  debtor  in  land,  it  is  not  now  necessary 
to  join,  as  parties,  trustees  in  whom  the  legal  title 
stands.  Russell  v.  Burke,  180  Mass.  513,  See 
Whittemore    v.    Coivell,   7    Allen,   446. 

The  owners  of  different  estates  or  interests  in 
a  passago-way  may  join  in  a  bill  to  prevent  a 
nuisance  or  injury  to  their  rights  in  it.  Cadigan 
V.  Broivn,  120  Mass.  493  ;  Greene  v.  Canny,  137 
Mass.  64  ;  Ballon  x.  Hopkinton,  4  Gray,  328  ;  Smith 
V.  Smith,  148  Mass.  1. 

Numerous  parties  having  similar  claims  upon  a 
fund  may  join  —  or  may   be  required  to  join,  in 


28  PLEADINGS    AND    PRACTICE   IN    EQUITY 

a  suit  for  the  recovery  of  their  claims  in  order 
to  prevent  multiplicity  of  actions,  delay,  and  costs. 
Smith  V.  Bank  of  Neiv  England,  69  N.  H.  254. 

The  numerous  cases  on  the  matter  of  parties 
in  suits  in  equity  in  this  State  show  that  the  court 
has  liberally  exercised  its  discretion  under  the  rule 
stated  in  Smith  v.  Williams,  116  Mass.  510.  Steven- 
son et  ah.  V.  Austin,  3  Met.  474  ;  Lihhy  v.  Norris, 
142  Mass.  246  ;  Jewett  v.  TiLcker,im  Mass.  566. 

The  following  are  among  other  recent  cases 
in  equity  in  which  it  was  held  that  all  the  neces- 
sary parties  were  named  in  the  bill :  Lihhy  v. 
Norris,  142  Mass.  246  ;  Birmingham  v.  Gallagher, 
112  Mass.  190 ;  Soper  v.  Manning,  147  Mass.  126  ; 
McFadden  v.  Murphy,  149  Mass.  341;  Hills  v. 
Barnard,  152  Mass.  67. 

In  the  following  cases  it  was  held  that  all  the 
necessary  parties  were  not  named  in  the  bill ; 
Davisx.  Peaftoc?^,  170  Mass.  397;  Smith  v.  Williams, 
116  Mass.  510  ;  Gordon  v.  Green,  113  Mass.  259  ; 
Everett  v.  Edtvards,  149  Mass.  588 ;  Cassidy  v. 
Shimmin,  122  Mass.  406 ;  Foivle  v.  Torrey,  131 
Mass.  289  ;  Gregory  v.  Mer.  Nat.  Bank,  171  Mass. 
67  ;  Pierce  v.  LeMonier,  172  Mass.  508.1 

^  In  Faulkner  ?;.  Wameset  Power  Co.,  158  IMass.  435,  the 
court  allowed  amendments,  among  wiiich  was  to  allow  the 
"bringing  in  of  all  persons  or  corporjvtions  interested  in 
the  decision  of  the  question." 


PARTIES    PLAINTIFFS  29 


PARTIES  PLAINTIFFS 

"  The  general  rule  that  all  persons  of  whatever 
rank  or  condition,  and  whether  they  have  a  natural 
or  only  a  political  character,  are  capable  of  institu- 
ting suits  in  equity,  is  subject  to  a  very  few  excep- 
tions, and  extends  from  the  highest  person  in  the 
State  to  the  most  distressed  pauper."  Beach,  Mod. 
Eq.  Pr.,  §  40. 

It  includes  foreign  corporations,  by  comity, 
National  Tel.  M.  Co.  v.  JJuBois,  165  Mass.  Ill ; 
sovereigns.  King  v.  Kuepper,  22  Mo.  550  ;  and 
aliens,  excepting  those  of  a  nation  at  war  with 
the  United  States,  Kershaw  v.  Kehey,  100  Mass. 
561. 

Infants,  idiots,  and  lunatics,  in  equity  as  in  law, 
may  sue  by  guardian,  guardian  ad  littm,  or  next 
friend.  R.'l.,  c.  145,  §  ^3,  and  c.  147,  §  IT.  See 
Cunningham  x.  JJavis,  175  Mass.  213,  where  it  is 
said  that  the  rule  in  equity  differs  from  the  rule  of 
the  common  law  in  certain  cases. ^ 

The  time  within  which  a  bill  must  be  brought  to 
redeem  land  sold  for  taxes,  was  not  extended  by 

1  In  Thompson's  Cases  on  Equity  PL  &  Pr.  (1903),  p.  7 
et  seq.  are  several  instructive  cases  on  "  Suits  by  and  against 
Infants." 


30  PLEADINGS    AND    PRACTICE    IN    EQUITY 

the  fact  that  the  petitioner  was  an  infant.     O'Day 
V.  Boicker,  143  Mass.  59. 

As  the  power  of  a  next  friend  commences  with 
the  suit,  he  cannot  make  a  previous  demand  neces- 
sary for  its  prosecution.  Miles  v.  Boi/den,  3  Pick. 
213. 

An  infant  must  be  a  party  to  a  suit  affecting  his 
real  estate.  Wakefield  v.  3Iarr,  65  Me.  341  ;  Bich- 
mond  V.  Adams  Nat.  Bank,  152  Mass.  359. 

"  The  general  rule  that  the  ward  is  to  be  made 
the  party  in  suits  which  concern  his  title,  is  clear 
and  well  settled."  Lombard  v.  3Iorse,  155  Mass. 
136. 

In  Jarvis  v.  Crozier,  98  Fed.  Rep.  753,  it  was 
said  "  it  is  the  duty  of  a  court  of  equity  to  look 
after  the  interest  of  infant  defendants  and  to 
protect  them  in  the  absence  of  any  one  to  represent 
them."  This  is  usually  done  by  the  appointment 
of  guardians  ad  litem. 

In  Lombard  v.  3Iorse,  sujjra,  it  was  held  that  a 
husband  may  maintain  a  suit  in  equity  against  his 
wife,  during  coverture,  to  recover  property  obtained 
by  fraud  from  him  before  their  marriage. 

An  executor  or  administrator  appointed  in  an- 
other State  or  country  cannot  maintain  a  suit  in 
this  State,  unless  he  has  taken  out  letters  of  admin- 
istration here ;  nor  can  he  foreclose  a  mortgage  of 
real  estate  in  Massachusetts  without"  that.  Anthony 
V.  Anthony,  161  Mass.  343. 

The  rights  of  a  guardian  are  limited  to  the  State 


PARTIES    PLAINTIFFS  31 

of  his  appointment.      Woodworth  v.  Spring,  4  Allen, 
321. 

As  a  rule  receivers  appointed  by  a  court  of 
equity  in  another  State,  under  the  general  equity 
power  merely  of  such  court,  have  not  the  right  to  sue 
in  the  courts  of  this  State,  unless  they  are  actually 
or  virtually  assignee  of  the  claim  which  they  seek 
to  enforce.  Homer  v.  Barr  Pump.  E.  Co.,  180 
Mass.  163  ;  Hayicard  v.  Leeson  et  al.,  176  Mass.  310. 

But  a  receiver  of  a  corporation,  of  another  State, 
appointed  by  the  court  of  that  State,  pursuant  to  a 
statute  there,  to  enforce  a  stockholders  liability 
in  such  corporation,  can  after  due  proceedings 
there  establishing  that  liability  sue  in  the  courts 
of  this  State  to  enforce  such  liability  ;  to  wit,  an 
assessment  made  on  such  stock.  Howarth  v.  Lorn- 
hard,  175  Mass.  570. 

If  a  man  in  his  lifetime  conveys  his  personal 
property,  fraudulently,  to  defraud  his  widow,  or 
heirs,  or  creditors,  the  bill  to  recover  it  must  be 
l)rought  by  the  administrator,  or  executor  of  his 
will,  and  not  by  the  widow  or  heirs.  Flynn  v. 
Flynn,  183  Mass.   365. 

If  either  of  two  or  more  administrators  or  exec- 
utors refuse  to  join  his  associate  in  a  suit  in  favor 
of  the  estate,  the  court  may  allow  the  latter  to  pros- 
ecute the  suit.      French  v.  Peters,  111  Mass.  568. 

One  may  sue  in  equity  in  a  double  capacity,  as 
executor,  or  administrator,  and  as  an  individual. 
Ransom  v.   Geer,  30  X.  J.  Eq.  2-49. 


32  PLEADINGS    AND    PRACTICE   IN    EQUITY 

An  allegation  in  an  action  at  law  or  a  suit  in 
equity,  that  a  party  is  an  executor,  administrator, 
guardian,  trustee,  assignee,  conservator,  receiver, 
or  is  a  corporation,  shall  be  taken  as  admitted, 
unless  the  party  controverting  it  files  in  court 
within  the  time  allowed  for  filing  the  answer 
thereto,  or  within  ten  days  after  filing  of  the 
paper  which  contains  such  allegation,  a  special 
demand  for  its  proof.     R.   L.,   c.  173,   §  123. 

Debts  due  to  different  persons  severally  cannot 
be  joined  in  one  bill  under  cl.  7,  §  3,  c.  159,  R.  L., 
Chapman  v.  Bankers  cf-  T.  Pub.  Co.,  128  Mass. 
478.  Section  2  of  c.  173,  R.  L. ,  does  not  probably 
apply  to  bills  in  equity. 

It  is  a  good  ground  of  demurrer  to  a  bill,  if  on 
the  face  of  it  it  appears  that  the  plaintiff  has  no 
interest  in  the  subject-matter  of  the  suit,  or  that 
there  is  a  want  of  necessary  parties.  If  these  ob- 
jections do  not  appear  on  the  face  of  the  bill,  they 
can  be  made  by  plea. 


PARTIKS    DEP^ENDANTS  83'. 


PARTIES   DEFEXDAXTS 

Ix  general  it  may  be  stated  that  those  persons 
who  niav  sue  in  eciuitv  mav  also  be  sued.  Story's 
Eq.  Pl.;§67. 

Excepting  the  State  unless  under  a  statute 
authorizing  it.  Troy  cf*  Q.  R.  R.  v.  Common- 
wealth,  127  Mass.    43. 

And  excepting  sovereigns  of  a  foreign  country. 
Duke  V.  King,  6  Beavan,  1. 

It  foUows,  from  what  has  been  said  concerning 
parties,  in  suits  in  equity,  that  if  any  person  or 
party  is  necessary,  who  is  not  a  plaintiff,  he 
must  be  made  a  defendant.  Of  course  all  those 
must  be  made  defendants  against  whom  a  decree 
is  sought,  also  all  those  whose  interests  would  be 
bound  or  affected  ought  to  be  made  defendants,  if 
they  are  not  in  the  bill  as  plaintifi's ;  but  this  is 
subject  to  the  qualifications  before  stated,  that 
where  the  class  of  persons  is  very  numerous,  so 
that  it  is  very  inconvenient  to  include  them  all, 
such  a  number  of  them  may  be  included  as  will 
fairly  represent  the  interest  of  the  whole  class  — 
and  where  interested  jiarties  are  beyond  the  reach 
of  the  court,  in  which  case  the  coiirt  in  its  dis- 

3 


34  PLEADINGS    AND    PRACTICE    IN    EQUITY 

cretion  may  proceed  with  the  suit  with  the  parties 
in  court,  and  the  decree  be  made  "  without  preju- 
dice to  the  rights  of  such  absent  parties."  ^ 

But  a  court  of  equity  can  deal  with  a  fund  or 
property  in  certain  cases,  which  is  within  its 
jurisdiction,  though  the  owner  of  it  is  not,  and 
though  no  decree  in  pe?'sonani  could  be  made. 
R.  L. ,  c.  159,  §  3,  cl.  7 ;  Moody  v.  G-ay,  15  Gray, 
457;  Felch  v.  Hooper,  119  Mass.  52;  Equity 
Rule  V. 

The  death  of  a  joint  contractor  docs  not  cause 
the  suit  to  abate.      Cohh  v.  Fogg,  166  Mass.  466. 

There  is  no  instance  of  a  minor,  or  person 
under  other  legal  disability,  defending  by  a  next 
friend,  who  is  said  in  some  cases  to  be  an  officer 
of  the  court.      Bartlett  v.  Batts,  14  Ga.  539. 

"The  general  rule  is  well   established  that  a 

^  The  following  rules  of  the  Supreme  Court  of  Judica- 
ture of  England  respecting  parties  to  actions,  including 
suits  in  equity,  show  the  great  change  in  pleading  and 
practice  in  England  which  has  taken  place  since  the  times 
of  "Calvert  on  Parties  "  and  Chitty. 

Order  XV'I,  Rule  I:  "All  persons  may  be  joined  as 
plaintiffs  in  whom  the  right  to  relief  is  alleged  to  exist, 
whether  jointly  or  severally  or  in  the  alternative;  and  judg- 
ment may  be  given  for  such  one  or  more  of  the  plaintiffs  as 
may  be  found  to  be  entitled  to  relief,  for  such  relief  as  he 
or  they  may  be  entitled  to  without  any  amendment." 

Order  XVI,  Rule  IV:  "  All  persons  may  be  joined  as 
defendants  against  whom  the  right  to  any  relief  is  alleged 
to  exist  whether  jointly  or  severally  or  in  the  alternative." 

See  Wilson's  Practice  of  the  Supreme  Court  of  Judica- 
ture, 1,  171. 


PARTIES   DEFENDANTS  35 

judgment  cannot  properly  be  rendered  against 
an  infant  defendant,  in  a  civil  suit,  unless  he 
has  a  guardian,  or  guardian  ad  litem,  who  may 
defend  the  suit  in  his  behalf."'  Johnson  v.  Water- 
house,  152  Mass.  585. 

If  under  the  terms  of  a  w'ritten  instrument  or 
otherwise,  a  minor  or  person  under  disability,  or  a 
person  or  persons  not  ascertained  or  not  in  being, 
may  be  or  may  become  interested  in  any  property, 
real  or  personal,  the  court  in  which  any  action, 
petition,  or  proceeding  of  any  kind  relative  to  or 
affecting  any  such  estate  is  pending,  except  the 
court  of  land  registration,  may  upon  the  repre- 
sentation of  any  party  thereto,  or  of  any  person 
interested,  appoint  a  suitable  person  to  appear  and 
act  therein  as  guardian  ad  litem,  or  next  friend  of 
such  minor  or  person  or  persons  under  disability  or 
not  ascertained  or  not  in  being ;  and  a  judgment 
order  or  decree  in  such  proceedings  made  after 
such  appointment  shall  be  conclusive  upon  all  per- 
sons for  whom  such  guardian  ad  litem,  or  next 
frioid,  was  appointed.     R.  L.,  c.  145,  §  23.^ 

^  Service  of  writs  and  subpoenas  in  causes  where  the  de- 
fendant is  an  infant,  or  a  person  under  guardianship,  or  of 
unsound  mind,  should  be  made  upon  them  the  same  as  upon 
other  defendants.     Taylor  v.  Lovering,  171  Mass.  303. 


36  PLEADINGS    AND    PRACTICE   IN    EQUITY 


BILLS   OF   INTERPLEADER 

The  object  of  a,  l)ill  of  interpleader  is  to  get  the 
protection  of  the  court,  by  a  party  who  stands  in 
the  position,  substantially,  of  a  stakeholder,  not 
knowing  to  whom  to  pay  money,  or  to  deliver 
property  which  is  in  his  possession,  so  that  ho 
may  not  be  vexed  by  actions  of  the  contending 
parties  or  claimants  whose  real  contention  is 
with  each  other  and  not  with  him. 

The  plaintiff  must  be  a  mere  stakeholder,  hav- 
ing no  interest  in  the  fund  or  property,  — so  it 
was  held  that  an  executor  who  was  a  residuary 
legatee  could  not  maintain  a  bill  of  interpleader, 
"because  of  his  interest  in  the  subject-matter  of 
the  suit."     Ladd  v.   Chase,  155  Mass.  417. 

The  plaintiff  cannot  have  an  order  that  the 
defendants  interplead,  "  when  one  important  ques- 
tion to  be  tried  is,  whether  by  reason  of  his 
own  act,  he  is  under  a  liability  to  each  of  them." 
"He  may  have  incurred  a  double  liability."  Nat. 
Life  Ins.  Co.  v.  Pingrey,  141  Mass.  411 ;  Stone  v. 
Reed,  152  Mass.  179;  Weatherhee  y.  New  York  Life 
Ins.  Co.,  182  Mass.  342. 

"  The  rationale  of  interpleader  is  not  to  protect 


BILLS    OF    INTERPLEADER  37 

a  party  from  a  double  Uubiliti/,  but  from  a  double 
vexation  in  respect  to  one  liability." 

It  was  entertained  against  two  towns  to  deter- 
mine in  which  the  plaintiff  was  taxable,  the  parties 
making  no  objection.  Forest  River  Lead  Co.  v. 
Salem,  165  Mass.  193. 

A  mere  stakeholder  is  not  obliged  in  equity  to 
wait  until  he  is  sued  before  he  can  bring  his  bill 
of  interpleader.      A/u/ell  v.  Radden,  15  Ves.  244. 

He  cannot  be  heard  in  the  argument.  Xo  solic- 
itor of  the  plaintiff"  shall  appear  or  be  heard  for 
either  of  the  defendants.  Equity  Rule  XXVI. 
Batchelder,  Petitioner,  147  Mass.  470. 

"Where  there  are  conflicting  claims  to  a  trust 
estate,  the  trustee  by  filing  a  bill  in  the  nature 
of  a  bill  of  interpleader,  to  which  he  makes  parties 
those  who  claim  to  have  an  interest  in  the  trust 
estate,  can  ask  the  direction  of  the  court  as  to 
the  proper  mode  of  administering  the  trust,  and 
can  also  be  protected  in  the  disposal  of  the  prop- 
erty in  his  hands."  Fairbanks  v.  Belknap,  135 
Mass.  179;  Treadwell  v.  Salisburij  JIannf.  Co., 
7  Gray,  400. 

The  essential  conditions  of  an  interpleader  are 
four : 

1.  The  same  thing,  debt,  or  duty  must  be 
claimed  by  both  or  all  the  parties  against  whom 
relief  is  demanded. 

2.  All  their  adverse  titles  or  claims  must  be 
dependent  on  or  derived  from  a  common  source. 


38  PLEADINGS   AND    PRACTICE   IN    EQUITY 

3.  The  plaintiff  must  not  have  or  claim  any 
interest  in  the  subject-matter. 

4.  He  must  have  incurred  no  independent  lia- 
bility to  either  of  the  claimants.  Pomeroy's 
Equity  Jurisprudence,   vol.   3,   §  1322. 

And  a  bill  of  interpleader  will  not  lie  by  a 
debtor  against  his  creditor  and  a  third  person, 
who  claims  the  debt  not  through  any  privity  with 
the  creditor,  but  by  a  title  paramount  and  adverse 
to  his.  Third  Nat.  Bank  v.  Skillings  Lumber  Co., 
132  Mass.  410. 

But  "a  debtor  cannot  deprive  his  creditor  of  his 
remedies  at  law,  and  force  him  into  equity,  merely 
because  a  third  person  claims  the  fund  or  debt  by 
a  title  not  derived  from  the  creditor."  Third 
Nat.  Bank  v.  Skillings  Lumber  Co.,  132  Mass. 
410. 

It  may  be  filed  by  a  corporation  to  determine 
which  of  two  opposing  claimants  of  certain  stock 
is  entitled  to  a  dividend.  Salisbury  Mills  v. 
Townsend,  109  Mass.  115.  i 

The  statute,  §  37,  c.  173,  R.  L.,  in  terms  is 
limited  to  actions  at  law;  but  when  claimants 
are  summoned  in  and  appear,  power  is  given  the 
court  "to  hear  and  determine  the  rights  of  the 

^  A  bill  of  interpleader  has  been  held  to  lie  where  there 
are  several  claimants  for  portions  or  p^rts  of  a  fund,  if  the 
ascgregate  of  all  the  claims  exceed  the  amount  of  the  fund, 
if  the  plaintiff  is  in  the  position  of  a  stakeholder  merely,  and 
is  unable  to  determine  to  whom  or  what  amounts  are  to  be 
paid  to  each.     School  Dis.  v.  AVeston,  31  ]\Iich.  85. 


BILLS    OF   INTERPLEADER  39 

respective  parties,"  which  is  an  equity  power; 
and  in  Worthlngton  v.  Waring,  157  Mass.  428,  it 
is  said  in  such  case,  then  ''the  action  becomes  sub- 
stantially a  suit  of  interpleadei'. " 

Bills  filed  by  an  administrator  appear  to  have 
been  favorably  considered  under  facts  f>eculiar  to 
the  cases.  Stevens  v.  Wurren,  101  Mass.  564; 
Muldoon  V.  Muldoon,  133  Mass.  111. 

It  has  been  held  in  many  cases  that  injunction 
will  not  issue  against  either  of  the  claimants  pros- 
ecuting an  action  unless  the  plaintiff  has  brought 
the  fund  in  dispute  into  court.  Parker  v.  Parker, 
42  N.  H.  78;  Gardner  Inst.  v.  Emerson,  91  ]\Ie. 
535 ;  Bassett  v.  Leslie,  123  N.  Y.  396. 

The  plaintiff  in  his  bill  should  negative  any  in- 
terest in  the  fund  or  property,  and  should  set  out 
the  claims  of  the  others  specifically  so  that  the 
court  may  see  that  all  the  claims  have  a  common 
source.  Formal  defects  in  the  pleadings  will  be 
considered  waived  if  not  seasonably  objected  to. 
Cobb  V.  Bice,  130  Mass.  231.1 

^  If  an  injunction  is  sought,  as  is  commonly  the  case  in  a 
bill  of  interpleader,  the  bill  shoulil  be  sworn  to,  or  verified  by 
affidavit,  as  provided  in  standing  order  5.  And  it  seems 
that  the  old  rule  —  well  established,  but  now  not  uniformly 
observed  —  that  the  plaintiff  must  annex  an  affidavit  that 
the  bill  is  not  filed  collusively  between  him  and  any  of  the 
defendants,  is  still  in  force.  It  is  at  least  the  safer  course 
to  annex  such  affidavit,  or  to  include  a  statement  to  the 
same  effect,  in  the  oath  to  the  bill ;  or  to  make  the  state- 
ment in  the  bill,  if  it  is  sworn  to.     All  the  latest  authorities 


40  PLEADINGS    AND    PRACTICE    IN    EQUITY 

Interi»leader  to  determine  to  which  of  two  or 
more  parties  the  plaintiff  should  convey  real  estate 
are  not  common,  l)ut  such  a  case  was  Farley  v. 
Blood,  30  N.  H.  354. 

Interrogatories  may  be  filed  by  one  claimant  to 
another  in  such  case.  Cobh  v.  Rice,  130  Mass. 
231.  If  any  party  duly  cited  to  appear  and  show 
cause  why  he  should  not  interplead  fails  to  appear 
and  answer,  the  bill  may  be  taken  as  confessed  as 
to  him,  and  that  his  alleged  claim  is  groundless. 
Badeau  v.  Rogers,  2  Paige  Ch.  209. 

on  P-quity  Pleading  refer  to  tlie  rule  as  still  in  force.  Al- 
(Iricli  on  Eq.  PI  ,  lid  ed.  119.  Van  Zile,  Eq.  Pi.  &  Pr.,  §  379 
(1901). 

An  approved  form  of  such  affidavit  is  :  "  That  the  bill  is 
not  filed  by  me  in  collusion  with  any  or  either  of  the  de- 
fendants named  in  the  bill,  but  is  filed  by  me  on  my  own 
accord  for  relief  in  this  court." 

A  collection  of  cases  on  "  lnteri)leader  in  Equity"  is 
found  in  a  note  to  Shaw  v.  Coster,  85  Am.  Decisions,  pp. 
r)95-71-2.  A  valuable  and  more  recent  (19()o)  collection  of 
such  cases  has  been  made  by  Professor  Ames.  Ca.ses  on 
Equity  Jurisdiction,  ch.  5. 

There  are  ca.ses  \\here  a  bill  in  the  nature  of  a  bill  of 
interpleader  has  been  sustained  to  "  avoid  circuity  of  ac- 
tion."    Pease  v.  Royal  Society,  176  Mass   506. 


CROSS-BILLS  41 


CROSS-BILLS 

"A  CROSS-BILL  for  relief  is  where,  in  the  original 
suit,  all  things  iu  litigation  touching  the  subject- 
matter  cannot  be  brought  before  the  court,  but  the 
defendant,  in  order  to  obtain  a  complete  settle- 
ment of  the  controversy,  is  entitled  to  some  relief 
which  the  scope  of  the  plaintiff's  bill  will  not 
afford  him."     Richards  v.  Todd^  127  Mass.  167. 

It  must  relate  to  the  same  subject-matter,  and 
be  between  the  same  |)arties  and  brought  in  the 
same  court,  as  the  original  bill ;  and  ordinarily 
filed  before  final  hearing  on  the  original  bill. 
Tansey  v.    McDonndl,   142  Mass.   220. 

This  case,  in  which  the  opinion  was  by  Field, 
J.,  contains  a  valuable  discussion  on  the  subject 
of  cross-bills,  jdeas,  and  answers,  and  the  prac- 
tice upon  them  in  this  State. 

"A  cross-bill,  if  filed  in  season,  may  be  sus- 
tained for  the  purpose  of  obtaining  an  equitable 
set-off;  and  in  such  a  case  it  is  not  necessary  for 
the  pluintift'  to  show  any  ground  of  equity,  as 
against  the  plaintiff  in  the  original  bill,  to  sup- 
port the  jurisdiction  of  the  court;  a  cross-bill 
being  considered  as  a  defence  to  the  original 
suit;"  but  the  original  suit  ought  not  to  be 
greatly  delayed  for  such  cross-bill;  and  the  plain- 


42  PLEADINGS   AND    PRACTICE    IN    EQUITY 

tiff  in  the  cross-bill  was  held  guilty  of  laches  in 
Cart  Wright  v.    Clark,  4  Met-   104. 

The  allegations  of  the  cross-bill  must  be  con- 
sistent with  the  answer  to  the  original  bill. 

Where  the  plaintiff  asks  for  an  accounting,  and 
for  an  alleged  balance,  if  it  turns  out  that  the 
balance  is  due  the  defendant,  he  may  have  a  de- 
cree for  it  in  the  original  suit  without  a  cross- 
bill. Goldthvait  v.  Day,  149  Mass.  185.  So  of 
some  other  kinds  of  relief.  Cohurn  v.  Cedar 
Valley  Land  Co.,  138  U.  S.  221,  222. 

Whether  the  dismissal  of  the  original  bill  car- 
ries with  it  the  cross-bill  depends  on  the  character 
of  the  latter;  where  the  latter  sets  up  additional 
facts  and  prays  for  affirmative  relief,  the  dismissal 
of  the  original  bill  does  not  dispose  of  the  cross- 
bill.    Loivenstehi  v.  Glideivell,  5  Dillon,  325. 

But  it  is  otherwise  if  the  cross-bill  is  merely  a 
defence  to  the  original  bill.^ 

1  "  Tt  frequently  happens,  and  particularly  if  any  ques- 
tion arises  between  two  defendants  to  a  bill,  that  the  court 
cannot  make  a  complete  decree  without  a  cross-bill,  or  cross- 
bills, to  bring  every  matter  in  dispute  completely  before 
the  court,  litigated  by  the  proper  parties  and  upon  proper 
proofs.  In  this  case  it  becomes  necessary  for  some,  or  one, 
of  the  defendants,  to  the  original  bill  to  file  a  bill  against 
tlie  plaintiffs  and  other  defendants  in  the  bill,  or  some  of 
tliem,  and  bring  the  litigated  point  before  the  court." 
Mitford  PI.  in  Eq.  (4th  ed.)  81.  And  if  a  cross-bill  sets 
lip  only  a  defence,  which  defence  would  be  available  in 
answer  to  the  original  suit,  it  is  demurrable.  Kewbury  v. 
Blatchford,  106  III.  599. 


BILLS   OF   DISCOVERY  43 


BILLS   OF  DISCOVERY 

Bills  of  discovery  have  been  largely  superseded 
by  the  more  convenient  method  of  obtaining  the 
information  —  which  was  once  only  obtainable  by 
them  —  by  interrogatories  to  the  adverse  party 
in  the  same  suit;  and  by  compelling  the  adverse 
party  to  testify  at  the  trial.  ^  In  Wilson  v.  Webber, 
2  Gray,  558,  Bigelow,  J.,  said  of  the  right  to  in- 
terrogate the  adverse  party,  —  "The  main  purpose 
of  these  provisions  of  the  practice  act  was  to  sul)- 
stitute,  in  place  of  the  tedious,  expensive,  and 
complex  process  of  a  bill  of  discovery  on  the 
equity  side  of  the  court,  an  easy,  cheap,  and 
simple  mode  of  interrogating  an  adverse  party, 
as  incident  to  and  part  of  the  proceedings  in  the 
cause  in  which  the  discovery  was  sought."  — 
"But  these  statutory  provisions  have  not  taken 
away  the  jurisdiction  of  the  court  to  entertain 
bills  of  discovery,  although  they  may  affect  the 
exercise  of  this  jurisdiction  in  reference  to  suits 
brought  in  our  own  courts."  Field,  J.,  in  Post 
V.   Toledo,  ^c,  R.  R.,   144  Mass.  341,  which  was 

1  In  Preston  v.  Smith,  26  Fed.  Reporter,  8S9,  Brewer,  J., 
said  that  bills  of  discovery  had  fallen  into  a  coudition  of 
"innocuous  desuetude." 


44  PLEADINGS    AND    PRACTICE    IN    EQUITY 

a  bill  brought  against  the  officers  of  a  foreign 
corporation,  for  the  discovery  of  the  names  of 
the  stockholders  of  the  corporation.  See  R.  L., 
c.  159,  §§  12,  13. 

But  in  Kelly  v.  Morrison,  17G  Mass.  531,  it  is 
said  that  "a  bill  for  discovery  of  evidence  to  be 
used  in  defence  of  an  action  does  not  ordinarily 
lie  against  a  person  not  a  party  to  that  action,  and 
whose  only  relation  to  it  is  that  of  a  witness." 
Yet  §  13  of  c.  203,  R.  L.,  is  a  strong  implica- 
tion that  bills  of  discovery  may  be  maintained 
and  parties  made  defendants  for  no  other  pur- 
pose, or  reason,  than  "the  discovery  of  facts" 
from  them,  in  order  to  maintain  the  suit  against 
others,  as  was  formerly  often  done. 

A  bill  of  discovery  in  aid  of  an  action  at  law 
for  damages  for  personal  injuries,  will  lie  to  com- 
pel the  defendant,  an  employer,  to  produce  for  the 
inspection  of  the  plaintiff,  the  administrator  of 
an  employee  deceased,  the  defective  and  broken 
parts  of  machinery  on  which  the  employee  was 
at  work  when  injured,  which  defects  are  alleged  to 
have  been  the  cause  of  the  injury.  Reytiolds, 
Admx.,  V.  Burgess  Sulphite  Co.,  71  N.  H.  332.1 

1  The  opinion  of  Ju(lg;e  Chase  in  this  case  contains  a 
review  of  the  American  and  English  cases,  and  is  a  valu- 
able contribution  to  the  law  on  this  subject. 


SUPPLEMENTAL    BILLS  45 


SUPPLEMENTAL    BILLS 

Bills  of  Revivor  and  Supplemental  bills,  con- 
cerning which  much  learning  and  discussion  has 
been  expended,  have  almost  entirely  fallen  into 
disuse,  by  reason  of  p]quity  Rule  XXV,  by  which 
the  same  results  are  practically  accomplished  by 
amendments.      Murray  v.  Behon,  102  Mass.  11. 

Concerning  supplemental  bills,  it  is  said,  "If  a 
plaintiff,  at  the  time  he  filed  his  bill,  has  no  cause 
of  action,  he  cannot  file  a  supplemental  bill  to 
maintain  his  suit  upon  a  cause  of  action  that 
accrued  afterwards,  even  though  it  may  have 
arisen  out  of  the  same  transaction. "  McMurtrie 
V.    Guiler  et  al,   183  Mass.   451. 

"  But  this  does  not  preclude  him  from  maintain- 
ing such  a  bill  which  does  no  more  than  to  bring 
into  the  case  facts  that  have  arisen  since  the  orig- 
inal bill  was  filed,  and  which  refer  to  or  support 
the  matters  already  before  the  court."    Ibid.  455. 


46  PLEADINGS    AND   PRACTICE    IN    EQUITY 


DEMURRERS 

"A  DEFENCE  to  a  siiit  in  equity  shall  be  made  by 
demurrer,  plea,  or  answer."     R.  L.,  c.  159,  §  13. 

"  The  defendant  may  demur  to  part,  plead  to 
part,  and  answer  as  to  the  residue."  Equity 
Rule  IX. 

"  Whenever  any  ground  of  defence  is  apparent 
on  the  bill  itself,  either  from  the  matter  contained 
in  it,  or  from  defect  in  its  frame,  or  in  the  case 
made  by  it,  the  proper  mode  of  defence  is  by  de- 
murrer. "     Story,  Eq.  PI. ,  §  446. 

By  Equity  Rule  XIII  the  defendant,  instead  of 
filing  a  formal  plea  or  demurrer,  may  insist  on 
any  special  matter  in  his  answer,  and  have  the 
same  benefit  therefrom  as  if  he  had  pleaded  the 
same  or  demurred  to  the  bill. 

'•  But  the  more  modern  practice  and  the  one 
sanctioned  by  Mitford,  Lord  Redesdale,  and 
other  standard  writers,  is  to  file  each  pleading 
by  itself."  Beach,  Mod.  Eq.  Pr.,  Yol.  I,  §  244; 
Fletcher,    Eq.  Pr.,  §  193. 

But  where  the  defendant  demurs  to  a  part  and 
answers  to  a  part,  he  ought  to  specify  clearly  and 
precisely  what  part  he  demurs  to.  Beach,  Mod. 
Eq.  Pr.,  Vol.  T,  §  241. 


DEMURRERS  47 

And  it  is  not  a  proper  way  of  demnrrinir  to  say 
that  the  defendant  answers  to  such  a  part  "and 
demurs  to  the  rest."  Mitford,  Eq.  Pr.,  §§  213, 
214. 

A  demurrer  must  be  accompanied  by  a  certifi- 
cate that  it  is  not  intended  for  delay.  R.  L.,  ch. 
159,  §  13. 

And  the  objection  that  a  demurrer  is  not  ac- 
companied by  such  certificate  is  deemed  to  be 
waived  if  the  case  is  reserved  for  the  full  court, 
without  calling  the  attention  of  the  justice  to  it. 
ISfehon  v.  FerdhunhL  111  Mass.  300. 

If  the  demurrer  is  in  the  answer  in  the  form  of 
"special  matter"  mentioned  in  Equity  Rule  XIII, 
no  certificate  that  it  is  not  intended  for  delay  is 
necessary.  Hoar.  .!..  in  Mill  River  Loan  F.  Assn. 
V.   Clajli'n,  9  Allen,  101. 

A  demurrer  assumes  —  for  the  purpose  of  the 
demurrer  only  —  the  truth  of  the  facts  well 
pleaded  in  the  bill,  —  but  does  not  admit  the 
correctness  or  truth  of  what  are  merely  conclu- 
sions or  inferences.  Lea  v.  Robeson,  12  Gray, 
280.1 

Or  the  construction  of  an  instrument  alleged  V»y 
the  pleader,  or  that  a  fraud  was  committed  unless 
the  facts  show  it.      Ibid. 

1  It  is  not  correct  to  say  that  the  defendant  by  demurring 
atJmits  the  allegations  of  fact  in  the  bill;  for,  if  the  de- 
murrer is  overruled,  the  plaintiff  is  obliged  to  prove  them 
the  same  as  if  no  demurrer  had  been  filed. 


48  PLEADINGS    AND    PRACTICE   IN    EQUITY 

A  general  demurrer  is,  in  effect,  that  the  plain- 
tiff has  not  stated  such  a  case  in  his  bill  as  en- 
titles him  to  relief  in  equity. 

A  special  demurrer  points  out,  or  specifically 
assigns,  the  causes  of  it,  as  required  of  demurrers 
in  actions  at  law.     R.  L.,  c.  173,  §  14. 

A  demurrer  to  an  answer  is  not  known  in  equity 
pleading;  defects  in  an  answer  are  taken  advan- 
tage of  by  exceptions,  or,  if  the  plaintiff  considers 
that  the  answer  is  not  sufficient,  he  should  not 
file  a  replication,  but  at  once  have  the  case  set 
down  for  hearing  on  the  bill  and  answer.  Barry 
V.  Abbott,  100  Mass.  396;  Equity  Rule  XV]. 

In  which  event  only  the  facts  well  pleaded  in 
the  answer  are  to  be  taken  as  true. 

If  the  demurrer  is  general  to  the  whole  bill, 
and  the  bill  is  good  for  any  relief,  the  demurrer 
should  be  overruled.  Pope  v.  Salamanca  Oil  Co., 
115  Mass.  287;  Wright  v.  Dame,  1  Met.  241;  Dim- 
mock  V.  Birhy,  20  Pick.  368. 

A  demurrei'  should  not  allege  any  new  fact  not 
appearing  in  the  bill,  or  it  will  be  open  to  the 
defect  of  a  "  speaking  "  demurrer.  Story's  Equity 
PI.,  §  448. 

That  is,  it  will  lose  its  character  as  a  de- 
murrer. 

And  if  a  demurrer  is  joint  — -i.  e.,  by  two  or 
more,  and  the  bill  is  good  as  to  one  of  them,  it 
must  be  overruled ;  but  a  separate  or  several  de- 
murrer may   be  good    as   to   one  and  not   as  to 


DEMURRERS  49 

another  defendant.  Wooden  v.  Morris,  3  X.  J. 
Eq.  05;  Brown  v.   TuUma/i,   N.  J.  Eq.  (1903). 

If  a  demurrer  is  sustained  it  is  not  usual  to 
dismiss  the  bill  at  once;  the  usual  course  is  to 
allow  a  plaintiff  a  reasonable  time,  after  a  de- 
murrer has  been  sustained,  either  on  the  ground 
of  defect  in  form,  or  for  want  of  equity,  to  move 
to  amend  his  bill,  for  the  purpose  of  supplying 
the  defect,  or  alleging  new  or  additional  grounds 
for  the  C(piital»le  relief  which  he  seeks.  Neivbury- 
port  Bank  v.  Stevenson,  1  Allen,  489;  Parker 
V.   Fla<jg,   127  Mass.   30. 

Multifariousness  as  applied  to  a  bill  in  equity 
"  is  where  a  party  is  able  to  say  that  he  is  brought 
in  as  a  defendant  upon  a  record,  with  a  large  por- 
tion of  which,  and  of  the  case  made  by  which,  he 
has  no  connection  whatever."  Lord  Cottenham  in 
Campbell  v.  Mackay,  1  Myl.  k  Cr.  618. 

Oi' '"  when  a  bill  is  founded  upon  distinct  rights, 
not  so  related  t(j  each  other  that  the  court  should 
deal  with  both  in  the  same  bill."  Davis  v.  Pea- 
body,  170  Mass.  397. 

Or  "  when  different  causes  of  actions  are  joined 
which  cannot  be  properly  tried  together."  Syl- 
vester V.  Boyd,  166  Mass.  445 ;  Pope  v.  Leonard, 
115  Mass.  286;  Bicker  \.  Brooks,  155  Mass.  400; 
or,  a  bill  joining  distinct  claims  against  different 
defendants.  Keith  v.  Keith,  143  Mass.  262 ;  Davis 
V.  Peabody,  170  Mass.  397. 

But  a  bill  is  not  multifarious  because  the  plain- 

4 


50  PLEADINGS    AND    PRACTICE    IN    EQUITY 

tiff  sues  in  two  capacities,  or  because  he  seeks  to 
redeem  from  two  distinct  mortgages  on  different 
parcels  of  land,  or  because  the  plaintiff  claims  the 
same  thing  under  different  titles.  Robinson  v. 
Guild,  12  Met.  323;  or  because  he  seeks  in  one 
bill  to  recover  different  kinds  of  property,  real 
and  personal,  conveyed  pursuant  to  one  scheme  of 
fraud.     Parker,  Exr.,  v.  Flmjij,  127  Mass.  28. 

The  objection  that  a  bill  is  multifarious  is 
one  upon  which  there  is  no  inflexible  rule,  and  the 
question  whether  it  should  be  sustained  must 
be  determined  largely  by  the  circumstances  of  the 
particular  case.      Bliss  v.  Parks,  175  Mass.  539. 

Usually  at  the  hearing  on  the  demurrer  the 
solicitor  in  support  of  the  demurrer  is  first  heard, 
then  the  solicitor  in  support  of  the  bill,  and  then 
the  solicitor  in  support  of  the  demurrer  replies. 
1  Daniell's  Ch.  PL  &  Pr.,  596. 

A  demurrer  will  be  deemed  to  be  waived,  if  a 
case  proceeds  to  a  hearing  on  the  merits,  before 
the  court  or  master,  without  bringing  the  de- 
murrer to  the  attention  of  the  court.  Driscoll 
V.  Smith,  181  Mass.  222;  Crocker  v.  Dillon,  133 
Mass.  91;  Parker  v.  Nickerson,  137  Mass.  487; 
Creely  v.  Bay  State  Bk.  Co.,  103  Mass.  511. 

Technicalities  and  all  matters  of  form  are  con- 
sidered waived,  if  not  seasonably  objected  to. 
Pingree  v.  Coffin,  12  Gray,  2SS;Cobb  v.  Bivc,  130 
Mass.  231;  Nelson  v.  Ferdinand,  111  Mass.  300.1 

1  When  a  bill  is  defective  as  to  substance,  it  should  be 
demurred  to,  to  save  the  time  and  expense  of  the  liearing 


DEMURRERS  51 

The  objection  that  the  plaintiff  has  a  plain  and 
complete  remedy  at  law  may  come  too  late;  such 
objection  should  be  made  u'ithout  delay  at  the 
earliest  opportunity.  Dearth  v.  Hide  ^  Leather 
Bank,   100  Mass.   540. 

So,  the  objections  that  the  bill  is  multifarious, 
or  that  the  master  did  not  allow  five  days  to  file 
objections  to  report  under  Rule  XXXI,  may  come 
too  late.      Cobb  v.  Foff;/,  106  Mass.  466. 

There  is  no  exception  to  an  answer  for  insuffi- 
ciency. Equity  Rules  XVII  and  XVIII  apply 
only  to  bills  of  discovery.  Pearson  v.  Treaclwell^ 
179  Mass.  462. 

And  "an  exception  to  an  answer  for  imperti- 
nence must  be  allowed  in  whole  or  not  at  all." 
Stokes  V.  Farnstvorth,  99  Fed.  Rep.  836. 

And  it  cannot  be  taken  after  replication  has 
been  filed. 

If  a  bill  shows  laches  on  its  face  the  defence 
may  be  taken  by  demurrer.  Doane  v.  Preston, 
183  Mass.  569;  and  if  such  demurrer  is  over- 
ruled the  defence  may  still  be  made  in  the  answer, 
provided  there  are  any  new   facts  to  support  it, 

on  the  merits.  Where  the  defect  is  as  to  form  only  it  may 
be  demurred  to,  and  should  be  if  it  is  intended  to  take 
advantage  of  such  defect;  but  it  has  been  said  that  "  courts 
of  equity  are  apt  to  look  with  a  suspicious  eye  upon  defend- 
ants who,  by  availing  themselves  of  every  cause  of  demurrfr 
or  plea,  show  an  unwillingness  fairly  to  meet  the  plaintifp's 
case."  Barton  on  Eq.,  1st  ed.,  p.  113.  (Mewshaw  v.  Mew- 
shaw,  2  Md.  Ch.  12.) 


52  PLEADINGS    AND    PRACTICE   IN    EQUITY 

and  a  waiver  or  withdrawal  of  such  a  demurrer 
is  not  a  waiver  of  the  defence  of  hiches  if  set  up 
in  the  answer.  Snow  v.  Boston  Blank  Book  Co., 
153  Mass.  456. 

Submitting  the  case  upon  an  agreed  statement 
of  facts  is  a  waiver  of  all  objections  to  the  pro- 
cedure, unless  such  objections  are  expressly  re- 
served also.      Russell  v.   Loring,   3  Allen,   125. 

Among  the  chief  grounds  of  demurrer,  are :  1. 
That  the  plaintiff  in  his  bill  has  not  stated  a  case 
for  equitable  relief.  2.  That  there  is  a  Avant  of 
the  necessary  parties.  3.  That  the  bill  is  multi- 
farious. 4.  The  statute  of  frauds.  5.  The  statute 
of  limitations.  6.  Laches  (if  it  appears  on  the 
face  of  the  bill).  7.  That  it  appears  that  the 
plaintiff  has  no  interest  in  the  bill.  Besides  these 
there  may  be  demurrers  for  some  defect  or  defi- 
ciency in  matters  of  form,  as  want  of  certainty  or 
the  absence  of  some  necessary  allegation. 

A  demurrer  or  plea  need  not  contain  a  protesta- 
tion or  concluding  prayer.     R.  L.,  c.  159,  §  13. 


PLEAS 


53 


PLEAS 

The  office  of  a  plea  in  equity  is  to  bring  forward 
a  fact  or  law  —  a  single  ground  of  defence — not 
appearing  on  the  face  of  the  bill,  —  which,  if  estab- 
lished as  true,  is  sufficient  to  defeat  the  suit ;  and 
thus  save  the  time  and  expense  of  trying  the  whole 
case  through.  Roive  v.  Teed,  15  Ves.  377.  Story's 
Eq.  PI.,  §  647. 

"  It  sometimes  happens  that  a  bill  —  which,  if  all 
the  parts  of  the  case  were  disclosed,  would  be  open 
to  a  demurrer  —  is  so  artfully  drawn  as  to  avoid 
showing  on  the  face  of  it  a  cause  of  demurrer.  In 
such  a  case  the  defendant  is  compelled  to  resort  to 
a  plea,  by  which,  he  may  allege  matter  which  if  it 
appeared  on  the  face  of  the  bill,  would  be  a  good 
cause  of  demurrer."  Lord  Redesd.\le,  cited  in 
ly Arcy  V.   Beytagh^   Flanagan  <fe  Kelly,  500. 

"  If  one  point  will  put  an  end  to  the  whole  cause, 
it  is  important  to  the  administration  of  justice  that 
it  should  be  pleaded."  Saltus  v.  Tobias,  7  Johns. 
Ch.  216  ;  Rhode  Island  v.  Mass.,  14  Peters,  210. 

"  A  plea  ought  not  to  contain  more  than  one 
defence."  If  two  defences  could  be  brought  for- 
ward by  plea,  the  same  reason  would  justify  any 
number  of  defences  by  plea,  and  then  the  ad  van- 


64  PLEADINGS    AND    PRACTICE   IN    EQUITY 

tage  of  a  plea  would  not  be  obtained.  United  States 
V.  Bell  Tel.  Co.,  30  Fed.  Rep.  523.  Story's  Eq.  PL, 
§653. 

But  double  pleas  —  two  defences  —  have  some- 
times been  permitted.  Story's  Eq.  PL,  §  657, 
note. 

They  were  allowed  in  Bailey  v.  Hemenway  et  al., 
147  Mass.  326. 

The  allegations  of  the  plea  should  be  direct  and 
positive  statements  of  the  facts,  or  circumstances, 
which  constitute  the  one  defence  which  it  sets  up. 
Hancock  v.  Carlton,  6  Gray,  39. 

As  to  when  a  plea  may  be  amended,  and  when  a 
negative  plea  is  good,  see  Crease  et  al.  v.  Babcock, 
10  Met.  525. 

When  a  plea  is  set  down  for  argument,  the  facts 
well  pleaded  are,  for  the  purpose  of  the  argument, 
to  be  taken  as  true.  Davidson  v.  Johnson,lQ  N.  J. 
Eq.  112. 

By  Equity  Rule  IX,  in  certain  cases,  "  where 
fraud  or  combination  is  charged,  a  plea  to  that  part 
must  be  accompanied  by  an  answer,  supporting  the 
plea  and  explicitly  denying  the  fraud  or  combina- 
tion, and  the  facts  on  which  the  charge  is  founded." 
The  reason  for  this  is,  that  there  may  be  cases 
where  upon  the  facts  stated  —  without  the  allega- 
tions of  fraud  or  combination  —  a  plea  would  be 
good,  and  yet  by  reason  of  such  allegations  of 
fraud  or  combination  — -which  in  the  nature  of 
things  cannot  well  be  met  by  plea  —  a  case  may  be 


PLEAS  65 

made  by  the  bill,  which  can  only  be  met  by  denial 
of  the  fraud  or  combination  by  an  answer.  See 
Story's  Eq.  PI.,  §  681. 

"  If  the  plaintiff  insists  that  the  plea  is  insuffi- 
cient—  to  bar  the  suit  —  whether  true  or  not,  the 
course  is  for  the  plaintiff  to  move  to  set  it  aside 
for  insufficiency,  which  is  much  in  the  nature  of  a 
demurrer.  If  held  insufficient,  it  is  overruled,  and 
the  cause  proceeds  as  if  no  such  plea  had  been 
filed ;  but  if  held  sufficient,  the  plaintiff  may  take 
issue  upon  it,  and  the  fact  will  be  tried  in  the  usual 
way,  and  if  found  for  the  defendant  will  determine 
the  suit."  Shaw,  C.  J.,  in  Newton  v.  Thayer^  17 
Pick.  129. 

It  is  not  now  the  usual  practice  to  move  "  to  set 
aside"  a  plea  for  insufficiency  (though  it  may  be 
for  other  defects  of  informality),  but  the  usual 
course  now  is,  to  set  it  down  for  argument,  the 
same  as  a  demurrer  would  be. 

For  an  elaborate  and  instructive  discussion  of 
pleas  in  equity  by  Gray,  J.,  see  Farley  v.  Kittson^ 
120  U.  S.  303  ;  Hancock  v.  Carlton,  6  Gray,  39. 

A  plea,  like  a  demurrer,  can  under  Equity 
Rule  XIll  be  put  in  the  answer;  but  the  chances 
are  that  it  would  be  considered  only  as  a  part  of 
the  answer,  and  so  the  particular  benefit  of  it  as  a 
plea  would  be  lost. 

Pleas  in  equity  are  not  availed  of  as  much  as 
formerly,  though  they  may  serve  the  same  useful 
purpose.     For  instance,  in  the  common  case  of  a 


56  PLEADINGS    AND    PRACTICE    IN    EQUITY 

bill  to  dissolve  a  copartnersliip,  and  for  a  receiver, 
and  an  accounting, —  if  the  defendant  should  plead, 
and  prove,  that  he  was  never  a  partner  of  the 
plaintiff,  it  is  obvious  that  it  would  end  the  case 
and  so  save  the  time,  expense,  and  trouble  of  going 
through  the  whole  case  before  that  question  could 
be  determined  ;  so,  in  bills  to  redeem  from  a  mort- 
gage, it  may  happen  that  the  bill  is  dismissed  on  a 
single  point,  shown  at  the  end  of  a  long  hearing, 
which  might  have  been  done  earlier  in  the  case  if 
that  point  had  been  presented  in  a  plea. 

So,  too,  it  is  a  convenient  way  of  defence  in 
many  cases  by  a  bona  fide  purchaser  without  notice  ; 
l)ut  in  such  cases  it  has  been  held  that  the  amount 
of  the  consideration  paid  ought  to  be  stated  in  the 
plea.     Secombe  v.  Campbell^  18  Blatchf.  108. 

If  the  plaintiff  takes  issue  on  the  defendant's 
plea,  and  at  the  hearing  thereon,  the  allegations  of 
fact,  constituting  the  plea,  are  proved  to  be  true, 
the  bill  is  dismissed,  —  if  the  plea  is  to  the  whole 
bill ;  but  if  not  to  the  whole,  then  as  to  such  part 
of  the  bill  as  is  covered  by  the  plea.  Farley  v. 
Kittson,  120  U.  S.  303. 

If  the  allegations  of  facts  constituting  the  plea 
are  not  —  at  the  hearing  thereon — proved  to  be 
true,  the  defendant  files  his  answer,  subject  only 
to  the  liability  for  costs  as  provided  in  Equity 
Rule  XII. 

Any  fact  found  on  an.  issue  on  the  plea,  on  a 
hearing  thereon,  is  not  again  open  on  the  answer; 


PLEAS  0« 

such  a  finding  stands  as  to  that  fact  throughout  the 
case.^ 

"  It  is  now  well  settled  that  an  action  pending  in 
a  foreign  jurisdiction  cannot  be  pleaded  in  abate- 
ment of  an  action  commenced  in  a  domestic  forum, 
even  if  there  l)e  identity  of  parties,  of  subject-mat- 
ter and  relief  songlit."  "  In  equity  the  general  rule 
is  the  same." 

Shiras,  J.     Radford  v.  Fohom,  14  Fed.  Rep.  'M. 

And  probably  the  pendency  of  a  previous  action 
at  law  cannot  l)e  pleaded  in  abatement  of  a  suit  in 
equity  in  the  same  State  ;  a  good  reason  for  it  is, 
that  the  remedy  is  not  the  same. 

But  a  court  of  equity  will  not  permit  the  prosecu- 
tion of  two  suits  for  the  same  cause,  by  the  same 
plaintiff,  but  will  usually  allow  the  plaintiff  to  elect 
which  suit  or  action  he  will  proceed  with,  instead 
of  dismissing  the  later  one.  Sandford  v.  Wriylit, 
164  Mass.  85.2 

1  "  A  plea  is  usually  set  down  for  argument,  and  is 
allowed,  or  overrule'l,  and  if  overruled  the  defendant  must 
answer;  if  allowed  the  plaintiff  may  traverse  the  plea,  .  .  . 
but  a  plea  nuiy  be  ordered  to  stand  for  an  answer;  and 
under  our  practice  a  plea,  if  inserted  in  the  answer,  must  be 
taken  to  be  a  part  of  it,  and  true  for  all  the  purposes  of  the 
case,  if  the  cause  is  set  down  by  the  plaintiff  for  hearing 
upon  bill  and  answer."  Tansey  r.  McDonnell,  142  :Mass. 
220. 

-  Formerly  a  plea  in  equity  had  to  be  verified  by  an  oath 
that  the  facts  stated  in  it  were  true.  By  the  XXXI  Rule 
of  the  Supreme  Court  of  the  United  .States,  a  plea  is  not  to 
be  filed  unless  upon  certificate  of  counsel  that  it  "is  true 


58  PLEADINGS    AND    PRACTICE   IN    EQUITY 

Pleas  arc  in  abatement  or  in  bar.  Among  tlie 
grounds  for  the  former,  are :  Want  of  the  nec- 
essary parties;  the  pendency  of  another  suit  for 
the  same  cause ;  want  of  interest  in  the  plaintiff ; 
want  of  jurisdiction ;  multifariousness,  and  other 
objections  to  the  bill  in  its  then  form,  or  to  the 
process  ;  which  objections  may  possibly  be  removed 
by  amendment. 

Among  the  grounds  of  a  plea  in  bar,  are :  Some 
fact  or  law,  which  is  a  complete  bar  to  the  claim, 
which  goes  to  the  existence  of  a  cause  of  action  ; 
a  release  ;  bona  fide  purchase  for  value  ;  title  in 
the  plaintiff  ;  laches  ;  statute  of  limitations ;  stat- 
ute of  frauds;  judgment,  res  judicata^  etc. 

If  the  objection  to  the  jurisdiction  is,  that  the 
plaintiff"  has  a  remedy  at  law  that  in  many  cases 
may  be  deemed  to  be  waived  by  the  defendant  if 
he  does  not  make  the  objection  before  answering 
to  the  merits;  but  the  objection  that  the  court  is 
entirely  without  jurisdiction  of  the  cause  of  the 
suit  may  be  made  at  any  time.^ 

in  point  of  fact,"  and  "is  not  interposed  for  delay."  If, 
under  Mass.  Equity  Rule  XIII,  it  is  put  in  the  answer,  it 
does  not,  of  course,  have  to  be  verified  or  attended  with  any 
certificate  of  counsel ;  and  probably  not  if  it  is  not  put  in 
the  answer. 

1  A  plea  need  not  contain  a  protestation  or  concluding 
prayer.     R.  L.,  c.  159,  §  13. 


ANSWERS  59 


ANSWERS 

Ax  answer  is  the  most  usual  method  of  defence ; 
and  in  it  a  defendant  may  set  up  several  distinct 
grounds  of  defence,  provided  they  are  not  incon- 
sistent with  each  other;  and  he  may  allege  facts 
which  have  occurred  since  the  bill  was  filed. 

An  answer  —  except  to  a  bill  for  discovery — ■ 
shall  not  be  made  under  oath,  and  need  not  con- 
tain any  saving  of  exceptions  to  the  bill,  or  prayer 
to  be  dismissed,  or  for  costs.  R.  L,,  c.  159, 
§  13. 

"And  may  be  signed  by  the  party  or  his  at- 
torney and  shall  not  require  any  other  signature." 
R.  L.',  c.  159,  §  14. 

"The  defendant  shall  answer  fully,  directly,  and 
specifically  to  every  material  allegation  or  state- 
ment in  the  bill."     Equity  Rule  VII. 

If  the  defendant  demurrer  or  plea  to  any  part 
of  the  bill  has  been  sustained,  he  will  not  be  re- 
quired to  answer  that  part  of  it. 

"All  facts  well  alleged  in  a  bill  —  other  than 
for  discovery  only  —  which  are  not  denied  or  put 
in  issue  by  the  answer,  shall  be  deemed  to  be  ad- 
mitted."    Equity  Rule  XXYIII. 

Instead  of  a  formal  plea  or  demurrer  the  de- 
fendant may  insist  on  any  special  matter  in  his 


60  PLEADINGS    AND    PRACTICE    IN    EQUITY 

answer,  and  have  the  same  benefit  from  it  as  if 
he  had  pleaded  it  or  demurred  to  the  hill.  Equity 
Rule  XIII. 

And  if  special  matter,  like  laches,  is  set  up  by 
demurrer  —  it  may  be  if  it  appears  in  the  bill  —  it 
is  not  waived  by  withdrawing  the  demurrer,  but 
may  be  insisted  on  in  the  answer.  Snoiv  v.  Bos- 
ton^ ^c,  153  Mass.  456. 

"  Where  there  are  several  defendants  each  need 
not  generally  answer  to  any  jiart  of  the  charges  of 
the  bill  except  what  apply  to  or  concern  himself." 
Story's  Eq.  PI.,  §§  848,  853.1 

A  general  answer  is  not  a  sufficient  answer  in 
equity.  It  might  be  disregarded  by  the  court; 
and  if  there  are  two  or  more  material  allegations 

1  For  instance,  one  who  as  an  "equitable  trustee"  is 
brouglit  into  a  suit  under  cl.  7,  §  3,  c.  159,  11  L.  solely  on 
the  ground  tliat  he  has  in  his  hands  possession  or  control 
property  or  interests  of  the  principal  defendant,  which  the 
plaintiff  seeks  to  liave  applied  to  tlie  payment  of  the  debt  of 
tlie  principal  defendant  to  him,  but  wlio  lias  no  knowledge 
concerning  the  existence  of  such  debt,  may  state  his  igno- 
rance as  to  such  indebtedness  —  specifying  the  allegations  in 
respect  to  which  he  has  no  such  knowledge  —  but  in  respect 
to  the  property  or  interest  of  the  principal  defendant  which 
the  plaintiff  alleges  that  is  in  his  possession  or  control,  he 
should  answer  fullji  and  exnclly  —  stating  what  the  property 
or  interest  is  —  what  interest  the  principal  defendant  has  in 
it  —  the  terms  and  conditions  under  which  it  is  held  —  and 
all  the  facts  pertaining  to  it;  so  that  tlie  court  can  see  at 
once  whether  the  plaintiff  can  reach  and'apply  said  property 
or  interest  to  the  payment  of  his  claim  against  the  principal 
defendant. 


ANSWERS  61 

in  one  paragraph  of  the  bill,  a  general  denial  of 
that  paragraph  would  not  be  a  compliance  with 
the  rule.  "Directly"  in  the  rule  means  nut 
evasively  or  argumentatively.  The  answer  should 
state  facts,  not  arguments.  "An  evasive  answer 
is  poor  pleading  and  in  equity  poor  policy."  See 
Slater  v.  Maxwell,  0  Wall.  (U.  S.)  268. 

"A  simple  denial  of  the  plaintiff's  case  liter- 
ally is  wholly  insufficient.  The  defendant  must 
meet  it  with  full  and  circumstantial  denial,  and 
not  with  a  negative  pregnant."  Moors  v.  floors, 
17  N.  H.  481. 

A  defendant  cannot  be  allowed  to  shelter  him- 
self behind  e(|uivocal,  evasive,  or  doubtful  terms, 
and  thus  mislead  the  complainant,  nor  behind  a 
literal  denial  which  amounts  to  no  more  than  a 
negative  pregnant  or  an  evasion  of  the  point  of 
substance.  Particular  charges  must  be  answered 
jjarticularly  and  precisely.  Grady  v.  Robinson, 
28  Ala.  289;  Woods  v.  Morrell,  1  Johns.  Ch.  103- 
107 ;   Gamble  v.  Johnson,  9  Mo.  597. 

A  denial  in  one  part  of  the  answer  of  a  fact, 
when  in  another  part  of  it  the  defendant  says  he 
is  ignoi-ant  of  it,  is  bad.  Bailey  v.  StiUs,  3 
N.  J.  Eq.  2-45. 

But  a  defendant  is  not  bound  to  answer  any 
allegation  purely  scandalous  or  immaterial  or 
impertinent,  nor  say  anything  which  may  in- 
criminate him  —  l)ut  if  the  defendant  declines  to 
answer  for  this  reason  he  ought  to  state  specifl- 


62  PLEADINGS   AND    PRACTICE    IN    EQUITY 

cally  the  ground  for  it.  Story's  Eq.  PI.,  §  607, 
note. 

Scandalous  or  impertinent  matter  in  the  bill 
doGs  not  justify  similar  matter  in  the  answer  to 
meet  it.     Lanijdan  v.  Pickeruig,  19  Me.  214. 

Generally,  if  a  fact  is  charged  in  the  bill  which 
is  within  the  defendant's  own  knowledge,  as  a 
thing  done  by  him  personally,  he  must  answer 
positively,  and  not  as  to  his  belief  or  remem- 
brance.     Story's  Eq.  PL,  §  854. 

Equity  Rules  XVII  and  XVIII  apply  to  bills 
of  discovery  only,  and  there  can  be  no  exception 
to  answers  to  bills  for  relief,  for  insufficiency. 
Pearson  v.   Treadwell,  179  Mass.  462. 

If  the  plaintiff  on  the  filing  of  the  answer  is  of 
the  opinion  that  the  answer  —  assuming  that  the 
allegations  of  it  are  true  —  does  not  constitute  a 
defence  in  law  to  the  bill,  he  may  set  the  case 
down  for  hearing  on  the  bill  and  answer.  But,  it 
is  said,  there  is  sometimes  danger  in  this  course; 
because  if  on  the  argument  it  is  found  to  be  suffi- 
cient, —  ^'.  e.,  a  defence  in  law,  —  the  next  order 
naturally  would  be,  to  dismiss  the  bill ;  yet  the 
court  may  allow  the  plaintiff  to  amend  if  he  can 
subject  to  the  liability  for  costs,  —  but  if  the  court 
refused  to  allow  the  plaintiff  to  amend  in  such 
a  case,  he  could  hardly  —  with  much  reason  — 
complain. 

If  a  suit  is  heard  on  the  bill  and  answer  "the 
allegations  of  the  answer  must  be  taken  as  true 


ANSWERS  63 

when  they  are  in  conflict  with  those  of  the  bill. " 
Am.  Carpet  L.  Co.  v.  Chipman,  146  Mass.  385; 
Cavender  v.    Cavender,   114  U.  S.   471. 

But  if  the  case  is  set  down  for  hearing  on  bill, 
answer,  replication,  and  agreed  statement  of  fact, 
"the  allegations  in  the  answer  are  not  to  be  taken 
as  true  further  than  they  aresujjportcd  by  the  facts 
agreed."     Taunton  v.  Taylor,  IIG  Mass.  254. 

"  When  no  replication  is  filed  by  the  plaintiff, 
no  issue  made  upon  the  truth  of  the  defendant's 
allegations,  but  the  cause  is  set  down  for  a  hear- 
ino-  on  the  bill  and  answer,  then  the  answer  is 
considered  as  true  throughout,  in  all  its  allega- 
tions, whether  responsive  or  not."  Ferkins  v. 
Nichols,  11  Allen,  542. 

An  answer  prohibited  from  being  made  under 
oath  is  not  evidence  as  formerly,  but  stands  now 
as  ordinary  pleading;  which  is  the  reason  why 
there  can  now  be  no  exception  to  an  answer  to  a 
bill  for  relief  for  insufficiency;  Init  exception  may 
be  made  to  an  answer  for  scandal  or  impertinence. 


6-1  PLEADINGS    AND    PllACTICE   IN    EQUITY 


DISCLAIMER 

"A  DISCLAIMER  is  a  renunciation  of  title  and 
right  of  possession."  Oakham  v.  Ball,  112  Mass. 
539. 

A  defence  to  a  bill  may  be  b}'  disclaimer,  and 
the  only  case  in  which  it  is  safe  to  do  that  is 
where  a  party  against  whom  a  bill  is  brought  has 
never  had,  and  never  claimed  to  have,  any  inter- 
est in  the  subject-matter  of  the  suit.  One  who 
disclaims  is  estopped  from  ever  setting  up  any 
claim  that  he  then  had  in  the  subject-matter  of 
the  suit.      Jlansell  v.  Hansell,  44  La.  Ann.  548. 

But  one  may  be  liable  to  account  even  if  he 
does  not  claim  any  interest  in  the  subject- 
matter.  "He  cannot  disclaim  his  liabilivy." 
Story's  Eq.  PL,  §  838  (a),  1  Daniell's  Ch.  PI. 
&  Pr.   707. 

For  there  are  cases  where  a  plaintiff  may  have 
a  right  to  an  answer,  and  in  such  cases  the  de- 
fendant cannot  avoid  answering  by  alleging  that 
he  has  no  interest;  as,  for  instance,  where  it  is 
alleged  that  the  defendant  is  guilty  of  a  fraud  or 
where  it  is  necessary  that  he  should  be  retained 
as  a  defendant  in  order  that  the  relief  which  the 
plaintiff  claims  may  be  effectually  decreed  to  him. 
Isham  v.  dliller,  34  N.  J.  Eq.  61 ;  Ehworth  v. 
Curtis,  10  Paige  Ch.   105. 


REPLICATION  65 


REPLICATION 

Only  one  replication  — except  by  leave  of  court, 
which  is  rarely  given  —  is  known  in  equity ; 
that  is  the  general  replication  that  "the  plaintiff 
joins  issue  on  the  answer."     Equity  Rule  XV. 

And  it  will  be  considered  as  waived  by  the 
defendant,  if  he,  without  oljjection,  goes  on  with 
a  hearing  on  the  merits.  His  proper  course  is,  if 
no  replication  is  filed,  to  set  the  case  down  for 
hearing  on  the  bill  and  answer.  Holt  v.  Weld, 
140  Mass.   578. 

If  no  replication  is  filed,  and  the  cause  is  set 
down  for  a  hearing  on  the  bill  and  answer,  all 
the  facts  well  stated  in  the  answer  are  to  be 
taken  as  true,  as  above  stated,  whether  responsive 
to  the  averments  of  the  bill  or  not.  Perkins  v. 
Nichols,  11  Allen,  542;  Deehan  v.  Johnson,  141 
Mass.  24. 

So  also  as  to  the  facts  stated  in  a  plea,  if  the 
plea  is  in  the  answer.  Tanseij  v.  McDonnell, 
142  Mass.   220. 

But  the  court  may  allow  a  replication  to  be 
filed  at  any  time.  Doody  v.  Pierce,  9  Allen, 
141. 

If  the  plaintiff  does  not  wish  to  admit  the  truth 
of  the  allegations  of  the  answer  he  must  reply,  file 


66  PLEADINGS    AND    PRACTICE   IN    EQUITY 

a  replication, — Rule  XV, — and  then  the  case 
proceeds  to  a  hearing  on  the  evidence.  A  special 
replication  —  one  setting  up  new  facts  —  is  rarely 
filed,  never  without  leave  of  court.  Rule  XLV 
of  the  Equity  Rules  of  the  Supreme  Court  of 
the  United  States  expressly  forbids  it. 

The  reason  for  not  allowing  special  replications 
is,  that  all  the  facts  on  which  a  decree  for  the 
plaintiff  can  be  made  ought  to  appear  in  the  bill ; 
and  if  after  the  answer  is  filed,  or  at  any  time 
the  plaintiff  finds  it  necessary  to  allege  further 
facts,  it  should  be  done  by  an  amendment  to  his 
bill. 

This  general  replication  denies  all  the  allega- 
tions of  the  ansvver  not  responsive  to  the  bill. 
Humes  V.   Scruggs,   94  U.  S.  22. 

Excepting,  of  course,  what  the  answer  admits  of 
the  allegations  of  the  bill.  Cavender  v.  Cavender, 
114  U.  S.  464. 

A  disclaimer  is  a  kind  of  answer;  but  where 
the  defendant  simply  and  properly  files  a  dis- 
claimer to  the  whole  bill  no  replication  is  neces- 
sary; but  if  he  files  a  disclaimer  to  a  part  of  the 
bill,  and  a  plea  or  answer  to  the  other  parts  of  it, 
a  replication  is  necessary  to  such  other  parts. 

The  replication  terminates  the  pleadings  in  a 
suit  in  equity. 


PRACTICE   IN   EQUITY 


PRO    COXFESSO 

If  the  defendant  —  service  upon  him  having 
been  duly  made  —  does  not  appear,  or  appearing, 
fails  to  file  a  demurrer,  plea,  or  answer  "vrithin 
one  month  after  the  day  of  ajipearance, "  the  return 
day  of  the  writ  or  subpiena,  the  ])laintiff  may  enter 
an  order  to  take  his  bill  for  confessed.  Eipiity 
Rule  VIII. 

"A  confession  of  facts  properly  pleaded  dis- 
penses with  proof  of  those  facts ;  and  is  as  ef- 
fectual for  the  purposes  of  the  suit  as  if  the  facts 
were  proved ;  and  a  decree  pro  confesso  regards 
the  statements  of  the  bill  as  confessed."  Thorn- 
son  v.    Wooster,  114  U.  S.  104.1 

Yet  if  the  allegations  of  the  bill  are  not  sufficient 
to  authorize  a  decree,  none  can  be  made.  Bussell 
v.  Lathrop,  122  ^Mass.  300;  Forhcs  v.  Tuckerman, 
115  Mass.  llo;  and  when  a  decree  is  applied  for, 
the  court  should  look  into  it  to  see  that  it  is  a 
proper  one.      Tliom&on  v.    Wooster,  supra. 

^  This  case  contains  a  valuable  discussion  of  the  proceed- 
ini:rs  on  such  decrees. 


68  PLEADINGS    AND    PRACTICE    IN    EQUITY 

If  the  allegations  are  sufficient,  and  "the  bill 
be  taken  for  confessed  against  the  defendant  for 
want  of  an  answer,  he  still  has  the  right  to  be 
heard  on  the  form  of  the  decree,  and  to  appeal 
from  it."    Blanehard  v.  Cooke,  144  Mass.  207,  218. 

And  if  a  bill  is  taken  for  confessed  against  one 
defendant,  it  may  ])roceed  as  to  others  who  de- 
fend.     Goffw  Hathaicay,  180  Mass.  497. 

But  a  l)ill  taken  ^jro  confesso  against  one  de- 
fendant will  not  justify  a  final  decree  against 
him,  until  the  case  is  disposed  of  against  the 
other  defendants ;  and  if  on  the  hearing  on  the 
merits,  the  plaintiff's  case  is  shown  to  be  without 
foundation,  the  bill  will  be  dismissed  as  to  all. 
Frow  \.  Be  La  Vega,  15  Wall.  U.  S.  552;  Forbes 
V.  Tuckerman,  115  Mass.  120. 

A  decree  will  not  be  entered  pro  covfesso,  on 
default  agaiust  an  infant,  but  the  allegations  of 
the  bill  must  be  proved.  Hamilton  v.  Gilman,  12 
111.  2»50.  So  also  as  to  insane  persons  or  idiots. 
(7ffara  v.  McConnell,  93  U.  S.  151. 

But  certain  rules  in  respect  to  infant  de- 
fendants in  equity  do  not  apply  to  infant  trus- 
tees, when  defendants.  Walsh  v.  Walsh,  116 
Mass.  377. 

Decrees  pro  confesso  may  be  vacated,  and  the 
defendant  allowed  to  defend,  substantially  for  the 
same  reasons  as  apply  to  vacating  judgments  by 
default  in  actions  at  law.  Thomson  v.  Wooster, 
114  U.  S.  104;   White  v.   White,  169  Mass.  52. 


PRO    CONFESSO  69 

"  The  court  properly  —  where  the  bill  had  been 
taken  for  confessed  —  permitted  the  defendant  to 
appear,  and  take  part  in  all  matters  relating  to 
the  proof  of  claims,  the  disposition  of  the  assets, 
and  to  the  accounting,  as  a  party  interested  in  the 
cause  and  entitled  to  be  heard."  White  v.  Wiite, 
169  Mass.  55. 

If  an  amendment  of  the  bill  in  a  material  matter 
is  made  after  an  order  pro  confesso  is  entered,  it 
will  have  the  effect  of  making  it  a  new  or  sub- 
stitute bill,  and  such  order  pro  confesso  will  be 
vacated  and  no  further  decree  can  be  based  upon 
it.  Mlso7i  V.  Eaton,  66  Fed.  Rep.  376.  Other- 
wise if  the  amendment  is  merely  of  a  matter  of 
form.      Clason  v.    Corley,   5  Sandf.   454. 

It  is  not  the  practice  to  enter  a  formal  decree  on 
the  same  day  in  which  an  order  that  the  bill  be 
taken  pro  confesso  is  made.  Etpiity  Rule  XIX,, 
S.  C.  U.  S.  provides  that  when  the  bill  is  taken 
pro  confesso,  "the  court  may  proceed  to  a  decree 
at  any  time  after  the  expiration  of  thirty  days 
from  and  after  the  entry  of  the  order  to  take  the 
bill  pro  confesso. " 

See  Brown  v.  Home,  8  Beav.  607. 


70  PLEADINGS   AND    PRACTICE    IN    EQUITY 


INTERROGATORIES   TO   THE   ADVERSE 
PARTY 

"Either  party  may,  at  any  time  after  the  filing 
of  the  answer,  in  a  suit  in  equity,  file  interroga- 
tories in  the  clerk's  office  for  the  discovery  of 
facts  and  documents  which  are  material  to  the 
support  or  defence  of  the  suit,  to  be  answered 
upon  oath  by  the  adverse  party  in  the  manner 
and  subject  to  the  provisions  of  c.  173  relative 
to  interrogatories  in  actions  at  law,"  R.  L., 
c.   159,   §  15.1 

"The  main  purpose  of  these  provisions  of  the 
practice  act  was  to  substitute,  in  place  of  the 
tedious,  expensive,  and  complex  process  of  a 
bill  of  discovery  on  the  equity  side  of  the  court, 
an  easy,  cheap,  and  simple  mode  of  interrogating 
an  adverse  party,  as  incident  to  and  part  of  the 
proceedings  in  the  cause  in  which  the  discovery 
was  sought."      Wilson  v.    Webber,  2  Gray,  558. 

The  right  of  a  party  to  a  disclosure  from  his 
adversary    extends    to    all    facts   and    documents 

1  It  is  to  be  noted  that  in  suits  in  equity  interrogatories 
may  be  tiled  by  either  party,  "after  the  filing  of  the 
answer,"  while  in  actions  at  law  the  plaintiff  may  file 
interrogatories  to  the  defendant  "after  the  entry  of  the 
action."     R.  L.,  c.  173,  §  57. 


INTERROGATORIES   TO    THE    ADVERSE    PARTY        71 

which  may  be  material,  by  the  course  of  the 
pleadings  or  in  the  progress  of  a  cause  in  sup- 
port of  the  case  of  the  party  interrogating.  '"  For 
instance,  if  a  plaintiff,  in  answer  to  or  avoidance 
of  a  defence,  should  set  up  any  new  or  distinct 
matter,  it  would  be  competent  for  him  to  seek 
from  the  defendant  a  disclosure  in  support  of 
such  new  issue."  Wilson  v.  Webber,  2  Gray, 
558.  And  it  was  intimated  in  Giam  v.  iV.  Y., 
iV.  H.  .f*  ff.  R.,  that  discovery  by  means  of  in- 
terrogatories may  not  be  "  limited  to  cases  in 
which  it  would  be  granted  in  equity."  171  Mass. 
420. 

"The  general  principles  to  be  api)lied  in  the 
matter  of  interrogatories  are  settled  in  Gmin  v. 
K  y.,  X  H.  cf-  H.  R.,  171  Mass.  417."  Holmes, 
C.  J.,  in  Rabbins  v,  Brockton  St.  Ry.,  180  Mass. 
51. 

And  the  following  propositions  appear  to  liave 
been  decided  in  GiDin  v.  N.  Y.,  N.  H.  ^  H.  R.: 
—  That  the  president  of  a  defendant  corporation, 
in  an  action  of  tort,  is  bound  to  answer  interrog- 
atories, not  only  to  things  within  his  knowledge 
as  such  officer,  but  in  answering  for  the  company 
he  must  get  such  information  as  he  can  from  other 
servants  of  the  company,  who  presumably  have  con- 
ducted the  transaction  in  question. 

This,  however,  is  limited  to  inquiries  of  those 
still  in  the  service  of  the  company;  and  he  is 
not  to  be   put  "to  unreasonable  trouble  and  ex- 


72  PLEADINGS    AND    PRACTICE    IN    EQUITY 

pense  "  in  obtaining  such  information.  The 
officer  of  the  company  interrogated  is  not  to  state 
mere  rumors,  or  merely  what  he  has  been  tohl. 
The  interrogatories  call  for  facts;  and  "in  addi- 
tion to  the  disclosure  of  such  personal  knowledge 
as  he  may  have,  if  any,  they  require  such  rea- 
sonable investigation  on  his  part  by  means  of 
inquiries  from  those  who  are  at  that  time  subject 
to  his  direction  or  control  as  will  enable  him  to 
state  what  the  facts  are."     Ibid.,  421. 

"The  party  interrogating  cannot  compel  him 
(the  adverse  party)  to  get  up  his  case  for  him, 
nor  to  disclose  his  own  case;  though  the  fact 
that  some  of  the  information  required  by  the 
answers  may  be  material  to  his  own  case,  will 
not  excuse  him  from  answering,  if  it  is  also 
material  to  that  of  the  party  interrogating." 
Ibid.,  421. 

That  at  the  trial  the  interrogating  party  is  able 
to  produce  other  evidence  of  the  facts  sought  l)y 
the  interrogatories  does  not  excuse  the  interro- 
gated party  from  answering  them. 

That  such  information  as  the  interrogatory 
seeks  can  be  obtained  through  witnesses  does 
not  take  away  the  right  of  discovery  through 
interrogatories.     Ibid.,  420. 

"That  where  answers  are  upon  information  and 
belief  it  may  be  so  stated."     Ibid.,  420. 

It  was  held  in  Bobbins  v.  Brocktoii  St  Rij.  Co., 
180  Mass.  51,  that  the  president  of  the  defendant 


INTERROGATORIES    TO    THE    ADVERSE    PARTY         78 

company  need  not  answer  the  questions,  "  What 
are  the  respective  ages  of  the  motorman  and  con- 
ductor? "  or  "  What  caused  the  collision  ?  " 

"The  right  to  interrogate  is  not  a  right  to 
abridge  the  other  party's  right  to  try  any  fairly 
doubtful  fact";  and  so  he  was  not  obliged  to  state 
his  opinion  as  to  "what  caused  the  collision." 
Also,  if  the  president  of  the  company  "can  say 
with  truth  after  reasonable  incpiiry  that  he  is 
unable  to  ascertain  what  the  facts  are,  an  answer  to 
that  effect  would  be  enough,"  and  he  is  also  not 
obliged  to  answer  "  what  i)articular  possiljle  wit- 
nesses would  testify. "  ^ 

"  It  is  not  the  practice  of  the  court  of  chancery 
(England)  to  allow  interrogatories  to  be  admin- 
istered to  infant  plaintiffs  or  defendants.  "  Mayor 
V.  Collins,  24  Q.  B.  D.  361. 

But  qncere,  where  such  infants  are  trustees? 

A  guardian  ad  litem  is  not  a  party  who  can 
be  compelled  to  make  discovery  of  documents. 
Iiujram  v.  Little,  11  Q.  B.  D.  251. 

So  also  a  next  friend  is  not  an  "adverse 
party,"  required  to  answer  interrogatories.      G-ray 

1  An  examination  of  the  i^exen  interrogatories  in  the  ca.se 
of  Robbins  v.  Brockton  St.  Ry.  which  the  court  held  were 
concerning  matters  of  facts,  "as  to  which  the  plaintiff  had 
a  right  to  inquire,"  and  the  other  interrogatories  wliich  the 
court  lield  need  not  be  answered  by  the  president  of  the 
defendant  corporation,  shows  quite  clearly  what  interroga- 
tories in  such  a  case  may,  and  what  may  not,  be  required  to 
be  answered. 


74  PLEADINGS    AND    PRACTICE   IN    EQUITY 

V.    Parke,   155   Mass.   433;  Dyke  v.    Stephens,   30 
Ch.  Div.  189. 

In  Davis  v.  Mills,  163  Mass.  481,  which  was  on 
an  alleged  breach  of  warranty  in  the  sale  of  l^our 
by  the  defendant  to  the  plaintiff,  the  answer  was 
a  general  denial.  The  defendant  interrogating 
the  plaintiff  ■  asked  him  to  state  the  conversation 
between  him  and  the  defendant's  agent  at  the 
time  of  the  sale  of  the  flour.  The  court  held 
that  it  was  asked  not  for  the  purpose  of  elicit- 
ing evidence  in  support  of  the  defendant's  case, 
but  only  "  to  ascertain  the  evidence  relied  on  by 
the  plaintiff  to  maintain  his  case,"  and  that  the 
plaintiff'  need  not  answer  it,  and  this  although 
the  plaintiff'  had  answered  certain  other  inter- 
rogatories which  he  was  not  obliged  to.  See 
also  Wetherhee  v.    Winchester,  128  Mass.  293. 

In  Baker  et  al.  v.  Carpenter,  127  Mass.  226,  the 
action  was  to  recover  damages  for  misrepresent- 
ing the  quality  of  grain  sold  by  defendant  to 
plaintiff';  the  defendant  claimed  that  it  was  sold 
"sul)ject  to  the  inspection  of  one  Morgan,"  who 
had  inspected  it  and  had  given  certificates  that  it 
was  of  the  quality  represented.  The  defendant 
filed  interrogatories  to  the  plaintiffs,  asking  them 
if  they  had  such  certificates,  and  if  so,  to  anne.x 
them,  and  to  state  when  and  from  whom  they 
received  them.  It  was  held  that  these  questions 
were  proper  and  should  have  been  answered. 
Other  instructive  cases   on  this  point  are  Hohhs 


INTERROGATORIES    TO    THE    ADVERSE    PARTY         75 

V.  Stone,  b  Allen,  109;  Todd  v.  Buhop,  136 
Mass.  38(3,  in  which  it  was  held  that  if  a  plain- 
tiff in  an  action  at  law  filed  a  replication,  he 
could  interrogate  the  defendant  to  elicit  facts  to 
sustain  such  replication.  Wihon  v,  Wehher,  2 
Gray,  558. 

A  person  may  be  relieved  from  making  certain 
disclosures  on  the  ground  of  general  public  policy 
or  of  privileged  communication.  Worthington  v. 
Scribner,   109  Mass.   487. 

"  It  is  not  sufficient  for  a  party  interrogated  to 
say  that  he  declines  to  answer  the  same  because  it 
would  tend  to  criminate  him.  It  must  be  shown 
affirmatively  that  they  would  do  so  ;  the  party  must 
answer  under  oath  that  such  would  be  the  effect." 
mMs  V.  Stone,  5  Allen,  109. i 

The  court,  in  an  action  for  damages  for  personal 
injuries,  will  not  order  the  plaintiff  to  submit  to 
physical  examination  in  advance  of  the  trial. 
U.  P.  El/.  V.  Botsford,  141  U.  S.  250. 

1  "  The  great  weight  of  authority,  as  well  as  a  due  regard 
for  the  rights  of  the  community  to  have  the  wheels  of  jus- 
tice unclogged,  as  far  as  may  be  consistent  with  the  liberty 
of  the  individual,  leads  us  to  reject  the  doctrine  that  a  wit- 
ness may  avoid  answering  any  question,  by  the  mere  state- 
ment that  it  would  criminate  him,  however  unreasonable 
that  statement  may  be.  The  true  rule  is,  that  it  is  for  the 
judge  before  whom  the  question  arises,  to  decide  whether 
an  answer  to  a  question  put  may  reasonably  have  a  ten- 
dency to  criminate  the  witness,  or  to  furnish  proof  of  a  link 
in  the  chain  of  evidence  necessary  to  convict  him  of  a 
crime."     Taft,  J.  in  ex  parte  Irvine,  74  Fed.  Rep.  960. 


76  PLEADINGS    AND    PRACTICE   IN    EQUITY 

But  his  unreasonable  refusal  to  show  his  injuries 
may  be  for  the  consideration  of  the  jury.     Ibid. 

"  Each  interrogatory  shall  be  answered  sepa- 
rately and  fully."     R.  L.,  c.  173,  §  (30. 

If  two  matters  are  embraced  in  a  single  interrog- 
atory, as  to  one  of  which  answer  should  be  given 
and  to  the  other  not,  the  interrogated  party  is  not 
obliged  to  answer  either.  He  is  not  required  to 
take  the  risk  of  separating  the  two  "  without  a 
specific  order  of  the  court."  Wetherhee  v.  Win- 
chester, 128  Mass.  293. 

"  The  statute  gives  a  party  the  right  to  interro- 
gate his  adversary  but  once,"  but  the  court  may 
permit  other  interrogatories  to  be  filed.  Hancock 
V.  Franklin  Ins.  Co.,  107  Mass.  113. 

The  affidavit  required  with  interrogatories  is 
said  to  be  "  as  a  security  against  frivolous  or  vexa- 
tious examinations  of  a  party  by  his  opponent." 
Foss  V.  Nutting,  14  Gray,  484. 

In  computing  the  ten  days  in  which  the  interro- 
gated party  should  answer,  Sunday  is  to  be  computed 
as  one,  unless  it  is  the  last  of  the  ten. 

The  o-eneral  rule  is  that  when  a  statute  fixes 
a  limitation  of  time  within  which  a  particular  act 
may  or  may  not  be  done,  if  the  time  limited  exceeds 
a  week,  Sunday  is  included  in  the  computation  ;  if 
it  is  less  than  a  week,  Sunday  is  excluded. 

It  is  held  that  "  issue  "  and  "  subject-matter,"  in 
R.  L.,  c.  173,  §§  60,  88,  mean  the  issue  and  the 
matter  put  in  issue   between    the    parties    in   the 


liNTERROGATORIES   TO    THE    ADVERSE    PARTY         •  i 

whole  case.     Baxter  v.  3Iassa8oit  Ins.  Co..,  13  Allen, 
320  ;   Churchill  v.  Bicker,  109  Mass.  211. 

Under  this  construction,  ought  a  party  be 
allowed,  as  has  been  done,  to  lug  into  an  answer  to 
a  question  merely  of  a  party's  residence,  or  busi- 
ness, a  statement  many  pages  long  of  his  whole 
claim  and  case,  and  in  reply  to  every  one  of  many 
interrogatories  naturally  calling  for  an  answer  to 
a  single  fact,  repeat  or  refer  to  the  same  answer  ? 
See  A7Hher.^t  &  B.  B.  Co.  v.  Watson,  8  Gray,  529.1 

This  provision  R.  L.,  c.  173,  §  60,  originally  was, 
that  the  party  interrogated  -  might  introduce  into 
his  answer  any  matter  explanatory  of  his  admis- 
sions or  denials,  if  relevant  to  the  interrogatory 
which  he  is  answering,  but  not  otlierwise."  Acts 
of  1851,  c.  233,  §  104> 

1  In  Lyell  '•■  Kennedy,  -V^  Weekly  Reporter,  p.  44,  where 
the  party  interrogating  asked  the  other,  if  the  latter  hu<l 
written  a  certain  letter  set  out  by  copy,  and  he  answered 
in  ninety  folios  of  matter  giving  the  circumstances  of  the 
whole  case,  it  was  held  that  such  answer  was  "irrelevant 
and  embarrassing."  Grovk.  J. :  "  I  think  this  answer  is 
not  a  proper  one.  It  does  not  merely  answer  the  question, 
but  goes  into  a  large  quantity  of  matter  impertinent  to  the 
question." 

"^  It  was  changed  the  next  year  (c.  012  of  Acts  of  1852), 
for  the  reason,  it  is  understood,  that  as  parties  could  not 
then  testify,  the  interrogating  party  obtained  an  undue 
advantage  by  obtaining  admissions  from  the  other  party, 
while  the  latter  was  not  able  to  say  anything  about  such 
admissions,  which  might,  if  he  could  testify,  be  properly 
said  in  his  own  behalf.  But  soon  after  that,  by  c.  188 
of  1856,  parties  became  competent  witnesses  in  their  own 


78  PLEADINGS    AND    PRACTICE    IN    EQUITY 

It  is  hardly  possible  that  it  can  be  sufficient  in 
any  case,  for  a  party  to  say  to  an  interrogatory, 
that  he  is  advised  by  counsel  that  he  need  not 
answer  it,  or,  that  by  advice  of  counsel  he  declines 
to  answer  it ;  it  ought  to  appear  from  the  record 
and  interrogatory  itself  that  it  is  one  that  need  not 
be  answered  or  at  least  the  interrogated  party 
should  state  in  writing  why  it  should  not  be 
answered.  The  reason  why  the  defendant  declines 
to  answer  an  interrogatory  apparently  proper  should 
be  stated  in  writing,  and  he  should  state  the  facts 
by  reason  of  which,  he  declines  to  answer  it.  Slater ' 
V.  Bcmu'ell,  50  Fed.  Rep.  150  ;  ffohbs  v.  Stone,  5 
Allen,  109.  The  party  interrogated  is  not  bound  to 
disclose  "  the  manner  in  which,  or  the  names  of  the 
witnesses  by  whom,  he  proposes  to  prove  his  case." 
R.  L.,  c.  173,  §  63.1 

Such  disclosure  as  to  names  of  witnesses  could 
be  had  by  a  bill  of  discovery.     Storey  v.  Lennox, 

favor,  and  the  reason  then  given  for  the  cliange  does  not 
now  exist. 

1  But  as  the  law  allows  interrogatories  to  be  put  by  one 
party  to  the  other,  not  primarily  tu  lielp  one  party  or  the 
other,  but  that  facts  material  to  the  just  decision  of  the  case 
may  be  produced,  if  one  party  knows  the  name  and  address 
of  a  person  whose  testimony  is  material  —  as,  for  instance, 
the  e3'e-witness  of  an  accident  —  or  an  agent  of  the  defend- 
ant to  whom  goods  sold  defendant  were  delivered,  and  it 
appears  to  the  court  that  his  testimony  is  material,  why 
should  that  party  not  be  required  to  disclose  the  name 
and  address  of  such  person  ?.  Hall  u.  Liardet,  W.  N.  1883, 
p.  175. 


INTERROGATORIES   TO    THE    ADVERSE    PARTY         79 

1  Keen,  357  ;  Marriott  v.  ChamherJain,  17  Q.  B.  D. 
154  ;  Wilson's  Practice,  pp.  251-268. 

The  right  to  file  interrogatories  to  the  adverse 
party  in  the  superior  court  is  not  lost  by  having 
waived  similar  interrogatories  in  the  court  below. 
Kennedy  v.   G-ooding,  7  (rvay,  417. 

If  some  answers  are  read  at  the  trial  the  inter- 
rogated party  has  a  I'ight  to  have  all  of  the  answers 
which  relate  to  the  issue  made  by  the  pleadings 
read.      Churchill  v.  Bicker,  109  Mass.  209. 

If  a  party  interrogated  wholly  neglects  to  an- 
swer interrogatories  proposed  to  him  within  the 
time  allowed  by  law,  the  court  may  enter  a  non- 
suit or  default;  but  not  if  the  answers  are  merely 
insufficient  or  evasive,  without  a  further  order  of 
the  court.     Fels  v.  Raymond,  139  Mass.  98. 

The  foregoing  decisions  on  interrogatories  to 
the  adverse  party  are  nearly  all  made  in  actions 
at  law,  but  are  understood  to  ije  apjjlicable  as  well 
to  suits  in  equity.     R.  L. ,  c.  159,  §  15. 


80  PLEADINGS    AND    PRACTICE    IN    EQUITY 


MASTERS,   THEIR   REPORTS,  AND 
EXCEPTIONS   ^i^HERETO 

"  A  MASTER  is  an  officer  of  the  court,  and  the 
master's  office  is  a  branch  of  the  court."  Equity 
Rules  XXX,  XXXI,  and  XXXII,  quite  fully  state 
his  duties.^  And  the  scope  and  extent  of  his 
authority  is  determined  by  the  order  to  him  and 
the  issues  made  by  the  pleadings.  Parker  v. 
Nickcrson,  137  Mass.  487. 

That  an  offi.cer  in  a  suit  in  equity  is  called  an 
auditor  is  not  decisive.  If  he  performs  the  work 
of  a  master,  his  report  must  be  treated  as  the  re- 
port of  a  master.  Norwood,  Petitioner,  183  Mass. 
151. 

It  is  the  province  and  duty  of  a  master  to  report 
his  conclusions  of  fact  upon  all  matters  referred  to 
him.     Jones  v.  Keen,  115  Mass.  170. 

But  he  should  not  hear  evidence  on  matters  not 
put  in  issue  by  the  pleadings.  "  A  plaintiff  is  not 
to  be  embarrassed  by  a  finding  prejudicial  to  his 
interest  which  is  not  material  to  any  issue  involved 

1  "  A  o-eneval  rule  of  court  duly  authorized  and  made 
has  the  force  of  law,  and  is  binding  upon  the  court  and 
parties,  and  until  repealed  must  be  applied  to  all  cases 
which  come  within  it."     Cram  r.  Moore,  158  Mass.  276. 


MASTERS,    THEIR    REPORTS,    ETC.  81 

ill  the  suit  and  was  made  because  the  defendant 
asked  the  master  to  make  it."  Newton  R.  Works 
V.  De  Las  Casas,  182  Mass.  438. 

A  master  directed  to  hear  the  parties  and  their 
evidence,  and  to  find  the  facts  and  report  the  same 
to  the  court,  should  not  report  the  evidence,  unless 
expressly  directed  by  the  court ;  it  is  in  the  discre- 
tion of  the  court  to  direct  him  to  do  so.  Hutchin- 
son V.  Nai/,  183  Mass.  355 ;  Silva  v.  Turner,  166 
JVIass.  407.  Though  he  may  at  the  request  of  a 
party  report  so  much  of  the  evidence  "  as  to  bring 
intelligently  before  the  court  any  question  of  law 
raised  before  him  at  the  hearing."  Parker  v.  Nick- 
erson,  137  Mass.  493, 

The  master  in  his  report  should  state  facts  — 
findings  of  fact  —  and  not  the  evidence  on  which 
they  are  founded.  Freeland  v.  Wrhjht,  154  Mass. 
492.  Roberts  v.  Barker,  63  N.  H.  332.  In  Hutchin- 
son V.  Naij,  183  Mass.  355,  the  court  said,  where  the 
order  to  the  master  was  to  report  the  facts,  "the 
master  had  no  authority  to  report  the  evidence." 

"  The  evidence  shall  not  be  reported  to  the 
full  court "  unless  taken  as  provided  in  Equity 
Rule  XXXV. 

In  ordinary  cases,  a  report  of  the  whole  testi- 
mony is  not  necessary  or  expedient,  so  is  not  to  be 
commended  as  a  general  rule.  Parker  v.  Simpson, 
180  ]\Iass.  357  ;  Hast  Tennessee  Land  Co.  v.  Leeson 
et  al,  183  Mass.  38. 

The  findings  of  fact  by  the  master  will  not  be 
6 


82  PLEADINGS   AND    PRACTICE    IN    EQUITY 

reversed  without  the  evidence  ;  and  a  motion  to 
recommit  the  cause  to  the  muster  for  that  purpose 
is  addressed  to  the  discretion  of  the  court.  Hen- 
derso7i  v.  Foster,  182  Mass.  447.  And  "for  the 
losing  party  to  come  in  for  the  first  time,  after  the 
liearing  before  the  master  is  closed,  and  his  draft 
report  is  known,  and  ask  for  the  report  of  the 
evidence,  is  a  proceeding  not  looked  upon  with 
favor."     Parker  v.  Nickerson,  supra,  p.  493. 

The  importance  of  duly  filing  objections  to  a 
master's  report,  if  a  party  intends  to  except  to  it, 
seems  to  be  not  generally  appreciated,  for  unless 
founded  on  such  objections,  exceptions  to  the  re- 
port are  of   no  value. 

Equity  Rule  XXXI  is  explicit.  "  No  exceptions 
to  a  master's  report  will  be  allowed  without  a 
special  order  of  the  court,  unless  founded  upon  an 
objection  made  before  the  master,  and  shown  by 
his  report,  and  unless  filed  within  fifteen  days  from 
the  filing  of  the  report." 

In  Copeland  v.  Crane,  9  Pick.  73,  the  court  said, 
"  Exceptions  are  always  to  be  confined  to  objections 
disallowed  or  overruled  by  the  master."  Edwards 
Hall  Co.  V.  Dresser,  168  Mass.  139. 

"  The  only  purpose  served  by  objections  is  to  lay 
the  foundation  for  exceptions  to  the  report.  Un- 
less perfected  by  exceptions,  founded  on  them, 
they  give  to  the  party  making  them  no  standing  in 
court  to  contest  tlie  master's  report."  Whiticorth 
V.  Lowell,  178  Mass.  50. 


MASTERS,   THEIR   REPORTS,   ETC.  83 

"  Exceptions  to  master's  report  must  be  fomided 
on  facts  stated  in  the  report,  or  in  the  accompany- 
ing documents  and  proofs."  Dexter  v.  Arnold, 
2  Sumner,  108;  Haskell  v.  Merrill,  179  Mass. 
120. 

"The  sole  purpose  served  by  an  exception  to  a 
master's  report  in  equity  is  to  take  an  appeal  from 
the  ruling  which  is  stated  in  the  record  of  the  suit, 
to  wit,  in  the  master's  report.  A  bill  of  exceptions 
at  law  is  an  addition  to  the  record.  An  exception 
to  a  master's  report  in  equity  serves  the  same  pur- 
pose as  that  formerly  served  by  a  writ  of  error, 
and  now  served  by  entering  a  bill  of  exceptions 
under  the  statute.  It  is  the  act  of  appealing  from 
rulings  appearing  of  record  and  nothing  more ;  it 
ought  not  to  contain  any  statement  of  what  those 
rulings  are,  and  any  such  statement  incorporated 
in  an  exception  to  a  master's  report  in  equity  must 
be  disregarded  as  impertinent."  Loring,  J.,  in 
O'Brien  v.  Keefe,  175  Mass.  276. 

If  the  record  shows  that  the  exception  to  a  mas- 
ter's report  is  founded  upon  no  objection  filed  with 
the  master,  it  must  be  overruled  under  Rule  XXXI. 
Edwards  Hall  Co.  v.  Dresser,  168  Mass.  136.  So, 
also,  if  the  exception  is  "  that  the  master  came  to 
a  conclusion  contrary  to  the  proofs  submitted  to 
him "  for  want  of  a  specification  required  by 
Rule  XXXII.     Ibid. 

Upon  the  hearing  on  exceptions  to  the  master's 
report  you  cannot  read  affidavits  made  subsequent 


84  PLEADINGS    AND    PRACTICE    IN    EQUITY 

to  it,  or  any  evidence  which  was  not  before  the 
master.     Rennell  v.  Kimball,  5  Allen,  356. 

So  that  no  ground  outside  the  record  can  be 
relied  upon  to  sustain  exceptions  to  a  master's 
report.  And  the  ten  excei)tions  to  the  findings  as 
not  warranted  by  the  evidence,  in  Hutchinson  v. 
N((i/,  183  Mass.  355,  were  overruled  because  the 
evidence  was  not  before  the  court. 

And  in  order  to  save  exceptions  to  a  master's 
report  wliich  the  court  will  consider,  it  is  not  suffi- 
cient to  maivc  requests  of  the  master  for  rulings,  or 
to  file  objections  to  his  report  with  him,  even  if  the 
master  send  up  such  requests  or  objections  with 
his  report.  Wliitworth  v.  Lowell,  178  Mass.  43. 
The  thing  excepted  to  must  be  stated  specifically. 
Baker  v.  Mayo,  129  Mass.  517. 

It  should  appear  in  the  report  that  the  master 
has  comjjlied  with  Rule  XXXI,  and  has  notified 
the  parties  or  their  counsel  wlien  and  where  they 
could  see  a  draft  copy  of  the  pi'oposed  report,  so 
that  either  of  them  could  make  any  suggestions  of 
alterations  in  it  if  any,  if  they  desired,  and  had 
also  given  them  the  time,  five  days,  stated  in  the 
rule  to  bring  in  objections,  and  that  he  had  con- 
sidered and  had  passed  upon  such  objections,  stating 
his  rulings  allowing  or  disallowing  or  overruling 
tliem. 

The  object  of  allowing  counsel  this  opportunity  to 
see  the  proposed  report,  and  to  make  suggestions, 
and  requiring  the  objections  to  be  filed  with  the 


MASTER?,   THEIR    REPORTS,   ETC.  85 

master,  is  to  give  him  an  opportunity  to  alter  or 
amend  his  report  if  he  thinks  upon  consideration 
of  such  suggestions  and  objections  that  it  is  wrong, 
so  that  the  report  when  filed  may  be  as  free  from 
errors  as  possible,  thus  saving  the  necessity  of 
sending  it  back  to  the  master.  And  the  master 
may  even  then  allow  further  evidence  to  be  put  in 
by  either  party  to  clear  up  an  obscure  or  uncertain 
point  or  correct  any  error.  Pattison  v.  Hull,  9 
Cowen,747,  but  see  Tyler  v.  Simmons,Q  Paige,  127. 
Though  of  course  if  he  did  so  or  if  he  materially 
altered  his  report  he  would  be  bound  to  give  the 
parties  an  opportunity  to  file  objections  in  like 
manner  to  the  report  as  altered.  2  Daniell's  Ch. 
PI.  (t  Pr.  1303. 

In  Rei/u'ood  V.  Miner,  102  Mass.  466,  the  master 
was  allowed  by  leave  of  court,  to  correct  an  •'  error 
of  expression^*  in  his  report  without  notice  to  the 
parties,  and  in  Cressman  v.  Card^  143  Mass.  152, 
the  court  allowed  correction  of  an  error  of  "  com- 
putation "  without  recommitting  the  report  to  the 
master. 

The  court  can  correct  mere  clerical  errors  after 
a  decree  is  filed  and  can  revise  the  findings  and 
conclusions  of  the  master  so  far  as  he  can  do  so, 
upon  the  evidence  reported  ;  but  no  case  has  been 
noticed,  in  which  after  the  report  has  been  filed 
the  court  has  received  other  or  further  evidence, 
not  reported,  to  alter,  vary,  or  add  to  the  findings 
of  the  master.     If  the  court  is  of  the  opinion  that 


86  PLEADINGS   AND    PRACTICE    IN    EQUITY 

such  further  evidence  ought  to  be  let  in,  or  that 
the  report  is  imperfect,  or  incomplete,  the  correct 
course  is  to  recommit  it  to  the  master,  with  direc- 
tions to  hear  such  further  evidence  or  to  correct 
his  report,  if  it  ought  to  he  done.^ 

Where  the  evidence  is  taken  by  a  commissioner, 
and  reported,  with  the  finding  of  facts  l)y  the  judge, 
the  full  court  on  a  report  of  the  case  to  that  court 
will  consider  the  evidence  as  reported,  but  will 
not  revise  the  finding  of  fact,  unless  clearly  wrong. 
Allen  V.  French,  178  Mass.  539. 

A  method  of  bringing  before  the  court  an  ob- 
jection that  the  master  had  improperly  refused  to 
receive  certain  evidence  offered  is  to  move  for  a 
recommitment  of  the  report,  requiring  him  to  hear 
and  report  the  offered,  but  rejected,  evidence. 
In  such  motion,  a  full  statement  of  such  rejected 
evidence  should  V)e  stated,  verified  by  affidavit,  so 
that  the  court  may  judge  of  its  admissibility  and 
materiality.^ 

That  a  master,  hearing  two  cases  together,  "  em- 

1  The  power  of  the  full  court  "in  cases  of  accident  or 
mistake,  to  allow  parties  to  exhibit  further  evidence,"  R.  L., 
c.  159,  §  24,  taken  with  the  provision  that  "no  oral  evi- 
dence shall  be  exhibited  to  the  full  court,"  strongly  implies 
that  if  such  further  evidence  is  to  be  "  exhibited  "  it  must 
be  done  by  recommitting  the  report  to  the  master  for  him 
to  report  it ;  no  other  course  seems  practicable. 

2  Another,  and  perhaps , better,  course  is  for  the  master 
to  take  the  evidence,  and  by  a  separate  paper  annex  or  file 
it,  with  the  report,  with  a  minute  of  the  objection  to  it  and 


MASTKRS,    THf]IR    REPORTS,    ETC.  87 

bodies  in  his  report  in  one  case  facts  and  findings 
which  relate  to  tlie  other,  is  no  gronnd  for  excep- 
tion. The  case  is  to  be  decided  upon  such  of  the 
facts  stated  in  tlie  re))ort  as  properly  belong  to 
it."     Fhje  V.  Berry,  181  Mass.  442. 

A  motion  to  recommit  the  report  of  a  master, 
though  a  matter  of  discretion,  will  not  ordina- 
rily be  granted  in  the  absence  of  special  reasons. 
Henderson  v.  Foster,  182  Mass.  447. 

That  no  exception  to  a  master's  report  is  filed 
is  not  ground  for  dismissing  an  appeal  from  a 
final  decree ;  that  may  preclude  one  from  maiving 
certain  objections  to  it,  but  the  court  will  con- 
sider whether  upon  the  facts  found  by  the  mas- 
ter the  decree  is  justified  by  the  facts,  the 
bill  and  the  record.  French  v.  Peters,  111  Mass. 
568. 

Objections  to  irregularities  in  respect  to  the 
hearing  or  report  may  come  too  late.  Lamson 
V.  Drake,  105  Mass.  568.  For  instance,  the  ob- 
jection that  the  master  did  not  allow  five  days 
for  defendant  to  file  objections  to  his  report, 
may  be  made  too  late.  Cohb  v.  Fogg.  166  Mass. 
466.     See  U.  S.  Ma.  Co.  v.  Holt,  185  Mass.  97. 

At  the  hearing  on  exception  to  a  master's  re- 

his  ruling  upon  it  ;  so  that  it'  tlie  court  deciilt^s  tliat  it  was 
admissible  and  proper  evidence  it  can  be  considered  without 
the  necessity  of  recommitting  the  report  and  recalling  the 
witnesses,  which  is  attended  with  delay  and  expense.  Gary 
V.  Herrin,  ("2  ]\Ie.  18.  See  Rennell  v.  Kimball,  5  Allen, 
366. 


;88  PLEADINGS    AND    PRACTICE   IN    EQUITY 

port,  at   belongs  to  the  excepting  party  to  open 
and  close.     Hoioev.  RtisseU,S6  Me.  115.  ^ 

1  "  Tlie  right  to  open  and  close  the  arguments  belongs 
to  the  party  who  pleads  affirmative  matter  in  abatement ; 
or  who  moves  to  dismiss;  or  who  demurs  ;  or  who  excepts 
to  an  answer,  deposition,  or  master's  report;  or  who  objects 
to  a  witness,  or  his  evidence,  or  who  maintains  the  affirma- 
tive on  aiiy  given  question,  or  who  has  the  entire  burden  of 
proof  to  bear."     Gibson  :  Suits  in  Chancery,  §  524,  note  7. 

After  the  above  notes  on  master's  reports  and  exceptions 
thereto  was  in  type  the  decision  of  Hillier  r.  Farrell  was 
made,  in  which  the  duties  of  masters,  under  the  thirty-first 
rule,  is  restated  so  clearly  and  fully  tiiat  it  does  not  seem  pos- 
sible that  so  many  errors  can  hereafter  occur  in  that  matter. 
N.  E.  Rep.,  Vol.  LXX.  Xo.  5,  p.  424. 

Form  of  Ohjections  to  Mat<te7-'s  Report. 
(Naine  of  Case.) 

Objections  made  by  the  (defendant  or  plaintiff)  to  the 
draft  of  the  report  of  the  Master  in  the  above  case. 

First  objection.  For  that  (here  state  fully  and  specifically 
the  alleged  error  or  defect). 

Second  objection.     For  that,  &c. 

Equity  Rule  XXXII.    Edwards  Hall  Co.  v.  Dresser, 
168  ]\rass.  136. 


FINDINGS    BY    THE    COURT  89 


FIXDINGS   BY   THE    COURT 

If  the  court  finds  facts  —  not  reporting  the 
evidence — the  only  question  then  in  the  full 
court  is,  whether  the  conclusion  is  consistent 
with  those  facts.  Francis  v.  Daley,  150  Mass. 
381;  Cleveland  v.  Hampden  Savings  Ba)ik,  182 
Mass.  110;  McConnell  v.  Kelley,  138  Mass.  372; 
East  Tenn.  Land  Co.  v.  Leeson,  183  Mass.  38. 

On  questions  of  fact  great  weight  is  given  to 
the  conclusions  of  the  justice  who  hears  the 
case.      Chase  v.   Huhbard,  153  Mass.  91. 

"The  well-settled  rule  in  such  cases  "  —  where 
the  evidence  was  oral  though  reported  in  full  — 
•'  is  that  the  decree  of  the  single  justice  will  not 
be  reversed  unless  it  appears  to  have  been  errone- 
ous. "     Fletcher  v.  Bartletf,  157  Mass.  113. 

"The  judge  saw  the  witnesses  and  heard  the 
testimony  of  the  plaintiff,"  and  his  findings  stand 
if  not  "clearly  wrong.''  Skehill  v.  Ahhott,  18-t 
Mass.   145;    Crowell  v.   Keene,  159  Mass.   352. 

But  on  his  finding  and  report  of  the  facts,  his 
inferences,  or  conclusions,  from  those  facts,  are 
subject  on  appeal  to  revision  by  the  full  court. 
Parks  V.  Bishop,  120  Mass.  340;  Wri<jht  v. 
Wright,   13  Allen,   209. 


90  PLEADINGS    AND    PRACTICE    IN    EQUITY 

In  Squire  v.  Lincoln,  137  Mass.  397,  the  Court 
said:  "The  master's  report  was  meagre  and  inade- 
quate and  might  properly  have  been  recommitted ; 
but  if  the  parties  were  content  to  go  on  to  a  hear- 
ing upon  them  as  they  stood,  the  court  was  at  lib- 
erty to  draw  such  further  inferences  as  might  be 
material  and  as  the  facts  found  would  warrant." 
And  upon  a  report  of  the  evidence  there  is  noth- 
ing to  prevent  the  full  court  from  coming  to  a  dif- 
ferent conclusion  from  that  reached  by  the  master 
and  the  single  justice.  Goodell  v.  Goodell,  178 
Mass.  140. 

"The  evidence  shall  be  taken  in  proceedings  in 
equity  in  the  same  manner  as  in  actions  at  law 
unless  the  court  otherwise  orders;  but  the  pro- 
visions of  this  section  shall  not  prevent  such  use 
of  affidavits  as  has  heretofore  been  allowed." 
R.  L.,  c.  175,  §  69.  Parker  v.  Nickerson,  137 
Mass.   487. 


TRIAL    BT   JURY  91 


TRIAL    BY   JURY 

An  application  for  a  trial  by  a  jury  of  issues  in 
a  cause  within  the  general  jurisdiction  of  a  court 
of  equity  is  addressed  to  the  discretion  of  the 
court.  Parker  v.  Simpson,  180  Mass.  334;  Oul- 
hert  V.  Hall,  181  Mass.  25. 

In  cases  where  it  is  a  matter  of  discretion  to 
submit  an  issue  to  a  jury,  it  is  also  in  his  dis- 
cretion to  discharge  such  issue.  Shapira  v. 
D'Arcy,  180  Mass.  377. 

And  so  the  ruling  allowing  or  denying  it  is 
not  the  subject  of  exception.  Dorr  v.  Treniont 
Bank,  128  Mass.  349;  Brooks  v.  Tarhell,  103  Mass. 
499.  So  in  probate  appeals.  Davis  v.  Davis,  128 
Mass.  590. 

But  it  may  be  taken  to  the  full  court  by  ap- 
peal, and  there  revised.  Merchants'  Nat.  Bank 
V.  Moulton,  143  Mass.  543:  Culhert  v.  Hall,  181 
Mass.  24 ;  JIcKay  v.  Kean,  167  Mass.  524. 

In  a  bill  under  clause  7  or  8,  §  3,  c.  159,  R.  L., 
"to  reach  and  apply,"  the  defendant  has  the  right 
to  a  trial  by  jury  of  a  certain  issue,  viz.,  "the 
material  facts  in  issue,"  between  the  plaintiff 
and  the  principal  defendant  —  /,  e.,  the  question 
of  such  defendant's  indebtedness  to  the  plaintiff. 


92  PLEADINGS    AND    PRACTICE    IN    EQUITY 

Powers  \.  Raymond  et  al.,  137  Mass.  483  ;i  Mer- 
chants'' Nat.  Bank  v.  ^loidton,  143  Mass.  544. 

But  in  no  case  has  it  been  held  that  a  plaintiff 
Avho  voluntarily  avails  himself  of  jurisdiction  in 
equity  has  a  right  to  a  trial  by  jury  of  any  issue 
in  a  cause  in  such  court.  It  has  been  intimated 
that  he  has  not  such  right.  "  He  must  take 
it  subject  to  the  rules  which  govern  courts  of 
equity."  Ross  v.  JVew  Eiig.  Ins.  Co.,  120  Mass. 
117. 

And  the  defendant  may  lose  his  right  to  a  trial 
by  jury  in  such  case  unless  his  demand  therefor 
is  "seasonably  asserted."  Parker  v.  Nickerson, 
137  Mass.  492;  Dole  v.  Wooldred<ie,  142  Mass. 
182.  And  will  be  held  to  have  waived  it  un- 
less he  makes  an  application  for  a  trial  by  jury 
before  the  case  is  referred  to  a  master,  "because 
the  trial  by  a  master  of  all  the  issues  of  fact  is 
inconsistent  with  a  trial  by  jury."  Parker  v. 
Nickerson,   137  Mass.   492. 

In  any  case  imdcr  cl.  7  or  8,  §  3,  c.  159,  R.  L.,  in 
which  the  defendant  has  a  right  to  a  trial  by  jury, 
should  he  not  apply,  or  file  a  notice  that  he  desires 
a  trial  by  jury  as  early  in  the  proceedings  as  he 

1  Bills  under  said  els.  7  and  8  are  said  to  be  "  of  a  nature 
unknown  to  general  equity  jurisprudence,"  and  the  above 
decision  in  Powers  r.  Raymond  is  not  overruled  by  Parker 
V.  Simpson,  180  ]\Iass.  3'34,  which  case  is  declared  to  be  "  well 
within  chancery  jurisdiction  aS  it  existed  at  the  time  of  the 
adoption  of  the  constitution."     p.  355. 


TRIAL   BY    JURY  93 

would  have  to  if  it  was  an  action  at  law  ?  §  56, 
c.  173,  R.  L.,  Com.  Law  Rule  XVIII. 

It  is  said  that  '"the  findings  of  the  jury  not 
having  been  set  aside  must  be  taken  as  true, 
though  the  justice  may  find  on  the  evidence  any 
other  material  facts  not  inconsistent  with  these 
findings."  Langmaid  v.  Reed,  159  Mass.  409; 
Dudley  V.   Dudley,   170  Mass.   34. 

But  this  is  not  the  general  rule ;  which  is,  that 
the  findings  of  a  jury  on  issues  of  fact  in  causes 
in  equity  are  merely  advisory.  Idaho  ^  0.  L.  Co. 
V.  Bradbury,  132  U.  S.  516;  Metcalf  v.  xMetcalf, 
85  Me.  473;  Potvers  v.  Larye,  75  Wis.  494;  Kohi 
V.  McXulta,  147  U.  S.  238.1 

^  If  the  rule  stated  in  Langmaid  r.  Reed  is  limited  to 
findings  by  a  jury  in  bills  under  els.  7,  8,  §  3,  c.  \hU,  R.  L., 
on  issues,  on  which  the  defendant  has  the  absolute  right  to 
such  trial,  it  is  consistent  with  the  general  rule. 

In  suits  under  els.  7,  8,  &c.  §  3,  c.  159,  R.  L.,  it  would  seem 
that  the  court  could  not  appoint  a  master  to  hear  the 
parties  on  those  issues  which  are  to  be  tried  by  a  jury, 
because  as  stated  in  Parker  v.  Xickerson,  137  Mass.  492, 
the  report  of  a  master  —  giving  to  it  the  weight  usually 
given  to  a  master's  report  — is  "  inconsistent  with  a  trial  by 
jury."  If  the  term  -'debt"  for  the  payment  of  which  cred- 
itors may  reach  and  apply  equitable  rights,  &c  ,  as  provided 
in  said  clause  7,  includes  accounts,  demands,  or  claims, 
necessary  to  be  examined  b\'  an  auditor,  and  if  a  claim  for 
a  trial  by  jury  has  been  seasonably  made  and  secured,  it 
would  seem  to  be  proper  to  appoint  an  auditor,  on  the  ques- 
tion of  such  debt  to  be  tried  by  the  jury.  And  if  an  auditor 
is  so  appointed,  shall  a  master  also  be  appointed  in  respect  to 


94  PLEADINGS    AND    PRACTICE    IN    EQUITY 

other  questions  in  tlie  suit?  Or  niay  the  auditor  hear  evi- 
dence and  report  on  those  also  ?  An  auditor  has  been 
appointed  in  many  cases  in  equity.  Whitwell  r.  Willard, 
1  Met.  216  ;  Quiniby  r.  Cook,  10  Allen,  32  ;  Powers  v. 
Kussell,  13  Pick.  G9. 

Commonwealth  r.  Mechanics  Ins.  Co.,  112  Mass.  192. 

Gray  v.  Chase,  184  Mass.  444,  and  remarks  of  Loring,  J. 

Issues  for  the  jury  in  equity  framed  by  the  Superior  Court 
are  to  be  tried  by  that  court  "in  the  county  in  which  the 
cause  is  pending."  K.  L..  c.  159,  §  38  ;  but  by  §  36,  c.  lo9, 
the  Supreme  Judicial  Court  "  may  in  its  discretion  frame 
issues  of  fact  to  be  tried  by  a  jury  in  that  court,  or  in  the 
Superior  Court  in  the  county  in  which  the  cause  is  pending," 
or  upon  request  of  all  parties  in  any  other  county.  A  sim- 
ilar provision  as  to  the  place  of  trial  exists  as  to  trial  of 
issues  framed  by  the  Supreme  Judicial  Court  in  probate 
causes.  R.  L..  c.  162,  §  25;  Ripley  r.  Collins,  162  Mass. 
450 ;  in  which  causes  the  framing  of  issues  for  and  trials  by 
a  jury  are  discretionary,  from  the  exercise  of  which  no  excep- 
tion lies,  though  an  appeal  does.  McKay  c.  Kean,  167  Mass. 
524.  The  findings  of  the  jury  in  these  cases  may  be  set  aside 
by  the  court  for  the  reasons  for  which  a  verdict  in  an  action 
at  law  may  be  set  aside. 

Dexter  v.  Codman,  148  Mass.  421. 


DECREES  95 


DECREE.S 

The  great  advantage  of  the  courts  of  equity 
over  those  of  common  law  is  in  the  flexibility  of 
its  judgments  and  their  adaptability  to  meet  the 
requirements  of  justice  and  the  equities  of  each 
case.  ^  Where  the  court  has  jurisdiction  of  the 
person  of  the  defendant,  it  may  compel  him  to 
perform  his  just  obligations  to  others  in  respect 
to  proijerty  and  property  rights  in  many  cases 
where  a  judgment  of  a  court  of  law  would  be  prac- 
tically futile.  It  may,  if  it  has  jurisdiction  of  the 
person  of  the  defendant,  compel  him  to  perform 
those  obligations  as  to  property  situated  in  other 
States  and  countries.  Bailey  v.  Hemenway,  147 
Mass.  320 ;  areat  Falls  Co.  v.  Worster,  23  N.  H. 
462 ;  Hart  v.  Sansom,  110  U.  S.  151. 

And  it  may  also  in  such  case,  having  jurisdic- 
tion of  the  person  of  the  defendant,  enjoin  him 
from  taking  unjust  proceedings  in  certain  cases 
in  the  courts  of  other  States;  though  it  cannot 
enjoin  such  court  or  the  judge  thereof.  Delion  v. 
Foster,  4  Allen,  550,      But  see  Chipman  v.  Manu- 

1  The  decree  must  follow  the  pleadings ;  but  the  court 
can  adapt  its  decrees  to  all  the  requirements  of  the  case, 
determining  as  far  as  possible  the  rights  of  all  the  parties 
in  the  case,  leaving  nothing  open  for  future  litigation. 
Jones  V.  Davenport,  45  N.  J.   Eq.  77. 


90  PLEADINGS    AND    PRACTICE    IN    EQUITY 

facturers'  Nat.  Bank,  156    Mass.   147,   where   the 
decision  in  Dehon  v.   Foster  is  discussed. 

A  decree  cannot  be  made  against  a  defendant 
personally  who  has  never  been  an  inhabitant  of 
this  Commonwealth,  nor  served  with  process. 
Moody  V.  Gay,  15  Gray,  457 ;  Spurr  v.  Covell,  3 
Cush.  578;  Pennoyer  v.  Neff,  95  U.  S.  714. 
But  if  the  res  is  within  the  jurisdiction  the  court 
may,  in  certain  cases,  by  a  trustee  or  receiver 
cause  a  conveyance  to  be  made.  Felch  v.  Hooper, 
119  Mass.  53.  In  this  case  such  acts  were  done 
on  the  land  by  the  i)laintiff,  with  consent  of  de- 
fendant, as  in  the  opinion  of  the  court  to  impress 
it  with  a  trust  in  favor  of  the  plaintiff.  See  R.  L., 
c.  147,  §  17.      • 

Decrees  are  interlocutory  or  final. 

A  final  decree  is  that  "  which  provides  for  all 
contingencies  which  may  arise,  and  leaves  no  neces- 
sity for  any  further  order  of  the  court  to  give  all 
the  parties  the  entire  benefit  of  the  decision." 
Gerrish  v.  Black,  109  Mass.  474 ;  Forbes  v.  Tucker- 
man,  115  Mass.  115.  And  it  is  the  duty  of  the 
court  to  settle  so  far  as  possible  the  rights  of  all 
parties  in  the  subject-matter  of  the  controversy, 
leaving  nothing  open  for  future  litigation.  The 
final  decree  should  adjudicate  the  matter  of  costs. 
In  the  absence  of  any  order  as  to  costs  in  a  final 
decree,  it  may  be  presumed  that  the  court  did 
not  intend  to  give  costs  to  either  party.  Stone  v. 
Locke,  48  Me.  425;   Connell  v.   3Iorse,  182  Mass. 


DECREES  97 

439.  And  when  costs  are  ordered  to  be  paid  by 
any  party,  it  is  bettei-  to  have  the  amount  stated 
in  the  decree.  East  Tenn.  Land  Co.  v.  Lccsori, 
185  Mass.  4.  A  decree  that  finally  disposes  of 
all  questions  raised  by  pleadings  should  not  con- 
tain a  provision  giving  "leave  to  plaintiff  to  apply 
to  court  lor  further  orders,"  S:c.  Breck  v.  Bdrmij., 
183  Mass.  130.  Xor,  where  the  bill  is  properly 
dismissed,  should  the  decree  direct  defendant  to 
hold  certain  funds  "in  trust."  Scofield  v.  Feck^ 
182  Mass.    123. 

An  order  sustaining  or  overruling  a  demurrer  is 
not  a  final  deciee.    Parker  v.  Flagg.^  127  Mass.  28. 

So  an  order  that  the  bill  be  taken  pro  cotift'sso  is 
not  a  final  decree.  RusHt'll  v.  Lathrop.,  117  Mass. 
424.  So  a  rescript  from  tlu.-  full  coui't  of  "  l)ill  dis- 
missed "  merely,  is  not.  Merrill  v.  Bt'ckivitlu  1(*»8 
Mass.  72.  A  final  decree  is  not  properly  entered 
pending  an  excei)tion  to  an  order  dismissing  the 
bill.  Prescott  \.  Pre-icott,  175  Mass.  64;  Hildrith 
V.   Thihedeau  (May,  1904),  185  Mass. 

In  many  cases,  such  as  where  a  decree  in  a  l)ill 
for  foreclosure  directs  the  defendant  within  a 
certain  time  to  pay  the  amount  of  the  moi'tgage, 
otherwise  to  stand  foreclosed  of  all  equity  of 
redemption;  or,  the  decree  in  a  bill  for  ix-demp- 
tion  directing  that  in  default  of  |»ayment  by  plain- 
tiff of  balance  due  from  him  within  a  time  specified 
his  bill  will  be  dismissed;  or,  the  decree  in  a  l)ill 

7 


98  PLEADINGS    AND    PUACTICK    IN    EQUITY 

for  Specific  perfonna:)co  of  an  agreement  for  the 
sale  of  land  filed  by  purchaser  directing  a  time  for 
payment,  and  in  default  bill  to  be  dismissed,  and 
other  similar  cases,  where  an  alternative  or  an- 
ticipatory decree  is  entered,  a  further  order  or  de- 
cree is  necessary  where  the  direction  has  not  been 
complied  with,  in  order  to  end  the  case ;  such 
further  order  or  decree  is  usually  obtained  on 
motion  supported  by  affidavit.  Plaisted  v.  Cooke^ 
181  Mass.  119. 

When  a  decree  is  affirmed  on  a])peal,  the  dis- 
cretion of  the  court  of  first  instance,  as  to  costs, 
is  not  usually  disturbed.  Moors  v.  Washburn,  lo9 
Mass.  17H;  citing  the  Manfjh'  J.  Smith,  123  U.  S. 
349,  356. 

A  court  with  full  equity  jurisdiction  cannot, 
after  a  final  decree  has  been  passed,  entertain 
an  independent  suit  to  recover  the  costs  of  such 
case.  It  is  the  duty  of  the  party  entitled  to  costs 
to  apply  for  them  before  the  final  decree;  if  he 
omits  this  he  has  no  remedy  —  the  final  decree 
being  silent  as  to  costs,  they  are  undoubtedly 
lost.     Lucas  v.  Morsf,  139  Mass.  59,  60. 

"No  decree  can  be  said  to  be  entered  of  record 
until  it  is  formally  drawn  out  and  filed  by  the 
clerk.  A  mere  order  for  a  deci-ee  before  it  is 
extended  in  due  form  and  in  apt  and  technical 
language  cannot  be  held  to  be  a  complete  record 
of  the  judgment  of  .the  court."  Tliomjjson  v. 
Goulding,  5  Allen,  81. 


DECREES  99 

A  decree  nunc  pro  tunc  may,  and  sometimes 
should,  be  entered  when  the  death  of  a  party  has 
occurred  after  hearinir  and  aruniniont.  Curran 
V,  Bun/ess,  155  Mass.  >S'J ;  Emery  v.  Parroft, 
107  Mass.  95;  R.  L.,  c.  177,  §4.  And  is  usual 
where  the  death  of  a  party  in  interest  occurs  after 
argument  and  l)efore  decision. 

Decrees  may  be  made  between  co-defendants  in 
certain  cases  —  and  it  is  the  policy  and  duty  of 
the  court  to  do  so  —  when  the  equities  between 
them  arise  out  of  the  case,  made  by  the  pleadings 
and  proofs.  Corcoran  v.  Chesapeake  Canal  Co., 
94  U.  S.  741  ;  Jones  v.    Grant,  10  Paige,  348. 

But  sometimes,  in  order  to  determine  and  de- 
cree the  rights  l>etween  co-defendants,  there  must 
be  a  cross-bill.     Smith  v.   Woolfolk,  115  U.  S.  143. 

And  there  are  cases  where  the  defendant  may 
have  affirmative  relief  against  the  jilaintiff  and  a 
decree  therefor  without  a  cross-bill,  as  on  a  bill 
for  an  account  when  a  balance  is  found  to  be  due 
to  the  defendant.  Goldthwait  v.  Day,  149  Mass. 
185. 

It  has  been  held,  though  not  in  Massnchusetts, 
that  where  on  a  bill  for  specific  performance  of  an 
agreement,  the  defendant  set  up  a  different  agree- 
ment, and  proves  performance  on  his  part  of  the 
true  agreement,  the  defendant  may  have  a  decree 
in  his  favor  on  the  latter  agreement.  Redfield  v. 
aieason,  Gl  Vt  220;  Story's  Eq.  PI.  k  Pr.,'  §  394, 
note. 


lUO  PLKADINGS    AND    PRACTICE   IN    f:QUITY 

The  court  has  ])Ower  to  imj)ose  equitable  con- 
ditions upon  the  relief  granted  the  plaintiff;  as, 
for  instance,  to  require  the  plaintiff  to  return  the 
money  jiaid  by  the  defendant  for  ju'operty  bought 
by  him  in  a  sale  which  the  plaintiff  desires  to 
have  set  aside.  Thomas  v.  Beals,  154  Mass.  51; 
see  Union  Trust  Co.  v.  Souther,  107  U.  S.  591. 
And  where  a  mortgage  was  held  to  be  void  for 
fraud,  participated  in  by  the  defendant  mort- 
gagee, it  was  held  that  he  should  be  repaid  the 
money  paid  out  by  him  for  taxes  on  the  ])roperty. 
Lamb  v.  Mclntire,  183  Mass.  367.  ^ 

On  a  bill  for  specific  performance,  the  plaintiff 
may  in  certain  cases  have  a  decree  for  money 
damages  where  a  decree  for  specific  performance 
cannot  be  made,  unless  he  knew  when  he  filed 
his  bill  that  specific  performance  was  impos- 
sible.     Milkman  v.    Ordway,   10(J  Mass.    232. 

In  equitable  replevin,  under  cl.  1,  §  3,  c.  159, 
R.  L.,  against  one  having  a  privilege  or  lien  on  the 
property,  the  court,  if  it  finds  that  the  plaintiff  is 
entitled  to  the  possession  of  the  property,  but  for 
the  lien,  can  order  the  property  to  be  delivered 
to  the  plaintiff'  on  his  payment  to  the  defendant  of 

^  "He  who  seeks  equity  must  do  equity  "  means  "that 
a  man  who  comes  to  seek  the  aid  of  a  court  of  equity  to 
enforce  a  claim,  must  be  prepared  to  submit  in  that  suit 
to  any  directions  which  the  known  principles  of  a  court  of 
equity  may  make  it  proper  to  give.  Colvin  v.  Hartwell, 
5  Cl.  &  Fin.  (H.  L.)  522;  People's  National  Bank  v.  Marye, 
191  U.  S.  272. 


DECREES  101 

the  amount  of  such  lien  and  costs.  If  the  pLiin- 
tif'f  in  such  case  had  l»cfore  suit  tendered  to  the 
defendant  the  amount  of  the  lien,  probably  the 
defendant  would  not  be  entitled  to  costs.  Riley 
V.  Hampshire,  Co.  Nat.  Bank.,  104  ^Mass.  482. 

On  a  bill  by  a  vendee  tor  specific  performance 
of  an  agreement  to  convey  land,  where  it  appears 
that  the  vendor  does  not  wholly  own  the  land,  the 
vendee,  if  he  chooses  to  take  it,  may  have  a  de- 
cree for  the  interest  which  the  vendor  has,  with 
a  jiroper  abatement  in  the  purchase  ])rice  for  the 
interest  which  the  vendor  cannot  convey.  Tohin 
V.  Larkin,  183  Mass.  380;  Woodbury  v.  Luddy, 
14  Allen,  1  ;  Davis  v.  Parker,  14  Allen,  94. 

''  In  a  general  creditors  bill  only  those  creditors 
who  come  in  under  the  decree  and  contribute  to  the 
suit  are  entitled  to  the  fruits  of  the  litigation." 
Hayivood  v.  Leesott  et  aL,  17<i)  Mass.  810;  Gerding 
(f  others  v.  East  Tenn.  Land  Co..,  ISo  Mass.  4. 

A  decree  requiring  an  infant  to  convey,  pur- 
suant to  his  agreement  to  do  so,  cannot  be  made 
dining  his  minority.  Whitney  et  al.  v.  Stearns, 
11  Met  319. 

But  this  does  not  apply  to  a  minor  who  holds 
j)roi)erty  ujion  "a  trust  express  or  implied."  R.  L., 
c.  147,  §  17;  Walsh  v.  Walsh,  116  Mass.  377; 
Merrill  v.  Beckwith,  108  Mass.  503. 

A  decree  cannot  be  safely  made  against  an 
infant  on  default  upon  taking  the  bill  for  con- 
fessed   for  want  of   an   answer,    or   upon   an   an- 


102  PLEADINGS    AND    PRACTICE    IN    EQUITY 

swer  filed  in  his  behalf  by  his  guardian  ad 
litem.      Walsh  v.    Walsh,  116  Mass.   382. 

But  if  made  by  consent  of  counsel  and  of  the 
guardian  ad  litem,  and  it  a|)|>ears  to  the  court  to 
be  fit  and  proper  to  be  made,  and  done  without 
fraud  or  collusion,  it  will  be  binding  upon  him. 
Walsh  V.  Walsh,  lib  Mass.  383.  See  Thompson 
V.  Maxwell  Land  Co.,   168  U.  S.   451. 

The  "next  friend"  of  an  infant  plaintiff  is  an 
otiicei'  of  the  court  appointed  specially  for  the 
protection  of  the  infant's  interests,  and  he  cannot 
effectually  compromise  a  suit  of  an  infant  without 
the  sanction  of  the  court.  And  such  next  friend 
is  not  liable  for  costs.  Tvipp  v.  Gifford,  155  Mass. 
108. 

A  decree  made  and  entered  by  the  consent 
of  the  parties  —  of  full  age  —  cannot  be  appealed 
fi-oni.  Winchester  v.  Winchester,  121  Mass.  127; 
Faeifie  R.  K  v.  Ketchum,  101  U.  S.  289.1  Nor  a 
decree  entered  in  accordance  with  rescript  of  full 
court.  Lincoln  v.  Eaton,  132  Mass.  69,  citing 
Humphrey  v.  Baker,  103  U.  S.  736.  But  if  there 
is  a  real  contention  that  such  decree  does  not  con- 
form to  the  rescript,  an  ap})eal  lies.  Sewall  v. 
Sewall,  130  Mass.  201.      The  remedy  is  by  petition 

1  But  when  a  decree  is  olitained  by  consent  and  is  not 
tlie  judgment  of  the  court,  the  court  may,  if  its  aid  in  enforc- 
ing it  is  asked  by  a  subsequent  bill,  refuse  to  be  constrained 
by  the  consent  decree,  to  decree  contrary  to  what  it  finds 
to  be  the  right  of  the  cause.  — Lawrence  Man.  Co.  v. 
Janes ville  Cotton  Mills,  138  U.  S.  552. 


DECREES  103 

to  tlic  Supreme  Judicial  Court  tor  a  rehearing, 
wliieh  is  addressed  to  its  discretion.  Nashua  ^j- 
Lowell  R.  R.  V.  Boston  ^  Lowell  R.  R.,  169  Mass. 
157.  And  when  a  decree  is  made  by  the  consent 
of,  or  on  the  agreement  of,  the  parties,  it  should 
so  appear  in  the  body  of  the  decree.  And  the 
only  way  such  a  decree  can  be  reviewed  is  by  a 
petition  for  a  rehearing  or  a  new  bill.  Win- 
chester V.    Winchester^   121   Mass.    128. 

A  decree  dismissing  a  bill  without  qualifica- 
tion after  hearing  on  the  merits  is  a  ])ar  to 
another  suit  in  an  action  l)ctween  the  same  par- 
ties for  the  same  cause.  Foote  v.  Gihhs^  1  Gray, 
412.1 

'"A  party  will  not  be  allowed  first  to  litigate  a 
question  in  a  court  of  equity  and  after  failing  to 
establish  his  claim,  again  to  litigate  it  in  a 
court  of  law."     Mills  v.   Gore,  20  Pick.  37. 

But  if  the  court  in  which  the  alleged  judgment 
was  obtained  did  not  have  jurisdiction  of  the  cause, 
or  if  judgment  be  obtained  by  fraud  or  covin  be- 
tween the   parties  with   the  intent  to  defeat  the 

^  A  decree,  like  a  jiulc:ment  at  law,  is  conclusive  until 
reversed.  If  it  could  be  attacked  and  held  void  in  another 
case,  there  would  be  no  end  to  litigation.  If  the  first  juds- 
ment  could  thus  be  found  to  be  wrong  and  void,  the  second 
could,  and  the  third,  and  so  on.  "  The  law  would  become 
a  game  of  frauds  in  which  the  frreatest  rouue  would  become 
the  most  successful  player."  M'Rea  v.  Matlooii,  13  Pick. 
58  :  Boston  &  Worcester  R.  R.  Cor.  c.  Sparhawk,  1  Allen, 
448. 


104  PLEADINGS    AND    PRACTICE   IN    EQUITY 

title  of  a  third  party,  such  third  j^arty  may  nttack 
such  judgment  or  decree.  Uoivns  v.  Fuller,  2  .Met. 
135. 

If  the  decree  does  not  show  for  what  it  was  dis- 
missed, it  may  be  shown  by  other  evidence.  If 
there  was  no  joinder  of  isbmo,  prima  facie  it  is  not 
a  bar.  Butchers^  AsHociafion  v.  Boston.  137  Mass. 
186. 

Interlocutory  decrees  may  be  varied  at  any  time 
before  the  entry  of  the  final  decree.  Bark  v.  John- 
son, 7  Allen,  378.  And  appeals  from  such  decrees 
do  not  suspend  the  power  of  the  court  to  chanue 
or  amend  them.  Cheney  v.  Gleason,  125  i\Iass. 
166;  Barker  v.   Fla(/(/,   127  .Mass.    28. 

A  decree  may  be  revised  at  any  time  before 
entry  of  record  of  the  final  decree,  and  before 
such  entry  there  may  be  amendments  and  re- 
hearing, but  as  a  general  rule  there  can  be  no 
rehearing,  revision,  or  alteration  except  to  cor- 
rect clerical  errors  after  a  final  decree  has  been 
entered.  White  v.  Gove,  183  Mass.  333;  3Ierrill 
v.  Beckwith,  168  Mass.  72. 

And  a  final  decree  will  not  be  reversed  on 
matters  of  fact  unless  clearly  erroneous.  Blos- 
som V.  Negm,  182  Mass.  515.  Nor  will  such 
decree  be  reopened  for  a  rehearing  on  a  question 
of  costs.      Bradlee  v.  Applet  on,  2  Allen,  93. 

The  only  remedy  in  such  case  is  by  a  bill  of 
review.  Thompson  v,  Gouldinrj,  5  Allen,  81;  and 
hardlv  then  if  a  decree  was  bv  consent  affirmed 


DECREES  105 

by  the  full  court.  Evans  v.  Hamlin,  164  Mass. 
239.      Sec  Bills  of  Review,  p.  161  et  seq. 

A  ])laintiff  can  as  a  matter  of  right  have  his 
bill  dismissed  when,  and  only  when,  no  person 
other  than  such  plaintiff  has  an  interest  in  the 
maintenance  of  the  suit.  HoUingstuorth  cf  Co.  v. 
Foxboro  W.  S.  Bis.,  171  Mass.  450:  Kempton  v. 
Burgess,  136  Mass.  192.  See  N.  Y.,  N.  H.  ^ 
H.  R.,  Petitioner,  182  Mass.   439.  i 

When  a  l)ill  is  dismissed  without  a  hearing  or 
any  decision  on  its  merits,  and  especially  if  the 
l)laintiff  intends  to  preserve  his  right  to  bring 
another  suit  or  any  action  for  the  same  cause, 
the  bill  should  be  dismissed  "without  preju- 
dice."    Kempton  v.    Burgess,   136  Mass.    192. 

Decrees  in  equity  as  a  rule,  excepting  where 
statutes  have  made  other  provisions,  operate  only 
in  personam.  Field,  J.,  in  McCann  v.  Randall, 
147  Mass.  99;  Wilson  v.  Mart  in- Wilson,  cf-c,  151 
Mass.  517  ;  Russell  v.  Burke,  180  Mass.  543 ;  Hart 
V.  Sansom,  110  U.  S.  154;  so  that  when  on  a 
bill  brought  under  cl.  7,  §  3,  c.  159,  R.  L.,  it 
has  been  adjudged  by  the  court,  that  any  "prop- 
erty, right,  title,  or  interest,  legal  or  equitable," 
of  the  debtor,  ought,  under  the  ]>rovisions  of  said 

1  In  a  creditor's  bill  brought  on  behalf  of  the  plaintiff 
and  such  other  creditors  as  inay  become  parties,  "  the  usual 
and  correct  course  is  to  open  a  reference  in  the  blasters 
office  and  to  give  other  creditors  having  valid  claims  against 
the  fund  an  opportunity  to  come  in  and  have  the  benefit  of 
the  decree."     Johnson  v.  Waters,  HI  U.  S.  674. 


106  PLEADINGS    AND    PRACTICE    IN    LQUITY 

cl.  7,  to  be  taken  and  applied  to  the  payment  of  his 
debt,  —  the  correct  procedure  is  not  to  decree  it 
to  be  thereafter  the  proi)crty  of  the  creditor,  or 
to  order  the  debtor  to  convey  or  deliver  it  to  the 
creditor;  but  it  has  been  held  that  the  correct 
}>rocedure  is  by  an  ap{troi)riate  decree  to  order 
that  it  be  sold  by  a  ])erson  appointed  by  the  court 
to  conduct  the  sale  —  or  so  much  of  it  as  may  be 
necessary,  — and  the  proceeds  of  it  applied  to  the 
payment  of  the  debt  and  costs;  and  the  decree 
should  further  provide  that  the  debtor  execute 
such  deeds  or  transfers  as  may  be  necessary  to 
give  a  good  title  in  or  to  the  property,  to  such 
purchaser.  Eussdl  v.  Burke,  180  Mass.  543.  If 
the  debtor  is  not  within  the  jurisdiction  of  the 
court  at  the  time  the  final  decree  is  made,  and 
service  having  been  made  on  the  debtor,  the  court 
may  appoint  a  person  to  make  the  conveyance  to 
the  purchaser.  Wilsoti  \.  Martin- Wilson,  ^c,  151 
Mass.   515. 

This  decision  as  to  the  form  of  the  decree  was 
put  on  the  ground  that  defendant  at  the  time  of 
the  decree  was  beyond  the  jurisdiction  of  the  court, 
and  so  "the  court  would  fail  utterly  to  reach  and 
apply  the  property  which  the  statute  intended  it 
should  apply  in  favor  of  the  creditor,"  unless  it 
could  be  done  in  the  way  suggested,  —  the  court 
finding  that  there  was  authority  under  the  statute 
to  make  a  sale  and  conveyance  in  that  way  (by  a 
master)  "whenever  it  juay  be  necessary  for  the 


DECREES  10' 


purpose  of  applying  property  conformably  to  the 
statute."  In  Russell  v.  Burke,  supra,  it  appeared 
that  the  defendant  had  appeared  in  that  suit,  and 
was,  at  the  time  of  the  decree,  within  the  juris- 
diction and  reach  of  the  court.  It  was  held  on 
appeal  that  the  decree  of  the  superior  court  was 

wrons.  .     . 

"The  court  should  have  directed  that  his  in- 
terest be  sold;  it  could  have  appointed  a  master 
to  make  the  sale;  but  upon  a  sale  being  made  by 
the  master  so  appointed  the  conveyance  should  be 
made  by  the  defendant,  and  the  decree  should  have 
so  ])rovided." 

The  rule  is  stated  by  Judge  Field  in  McCann  v. 
Randall,  that  "independently  of  a  statute,  a  court 
of  equity  cannot  appoint  a  person  to  execute  a 
transfer  of  the  property  <.f  another  in  his  own 
name";  and  as  stated  in  Hart  v.  Sansom,  that  "a 
court  of  equity  has  no  inherent  power  by  the  mere 
force  of  its  decree,  to  annul  a  deed  or  establish  a 

title."  ,    „ 

If  it  is  deemed  desirable  that  the  court  shall 

have  more  power  in  this  respect,^  or  that  its  decrees 

1  "In  many  of  the  States  of  the  Union,  where  the  equity 
powers  of  the  courts  have  been  aided  by  statutes  to  get  nd 
of  the  difficulty  of  compelling  parties  in  person  to  execute 
conveyances,  the  court  is  authorized  to  appomt  a  commis- 
sioner to  execute  the  conveyances  in  the  names  of  the  par- 
ties In  other  cases  the  statute  declares  that  such  a  decree 
itself  shall  operate  a.s  a  conveyance  of  the  title."  Gay  i;. 
Parpart,  106  U.  S.  090. 


108  PLEADINGS    AND    PRACTICE    IN    EQUITY 

in  these  cases  shall  operate  to  transfer  the  title  to 
property,  it  must  be  given  by  the  Legislature. 

And  in  decrees  where  a  master  or  receiver  is 
directed  to  sell  any  "property,  right,  title,  or  in- 
terest "  and  apply  the  proceeds,  or  so  much  of  it 
as  may  be  necessary,  to  the  payment  of  the  debt 
(stating  the  amount),  such  pro))erty,  right,  title, 
or  interest  should  be  specifically  and  accurately 
described;  and  such  master  or  receiver,  should 
])roceed  to  sell  it  at  public  auction  or  private  sale, 
as  he  may  in  the  decree  be  directed,  and  make  due 
return  of  his  doings,  much  as  a  deputy  sheriff 
would  do  upon  the  sale  of  property  upon  an  exe- 
cution, reassigning  or  reconveying  to  the  party 
from  whom  it  was  taken  or  received  all  of  such 
])r()pcrty  or  proceeds  not  needed  to  satisfy  the 
debt  and  costs.  If  in  any  case  the  proceeds  of 
such  sales  are  not  sufficient  to  pay  the  debt  and 
costs  due  the  creditor,  the  court  can  render  a 
judgment  and  issue  execution  therefor  against 
the  debtor  for  the  deficit  or  balance. 

Some  of  the  recent  cases  showing  what  property 
rights  or  interests  may  be  reached  under  said  cl.  7, 
§  3.  ch.  159,  R.  L.,  are:  — 

Right  of  dower.  McMahon  v.  Gray^  150  Mass. 
289. 

The  equitable  interest  which  the  debtor  has 
resulting  from  the  use  of  his  money  by  another 
in  the  purchase  of  land  conveyed  to  the  latter. 
Brcsnihan  v.  Sheehan,  125-  Mass.  11. 


DECREES  109 

The  defendant's  interest  in  policy  of  insurance 
on  his.  Anthracite  Inns.  Co.  v.  Sears,  1U9  >hiss. 
383. 

Patent    right.       Wihon    v.    Martin- Wilson,    lol 

Mass.   olT. 

Promissory  notes  of  third  persons  in  the  hands 
of,  and  due  to,  the  debtor.  Silloway  v.  Columbia 
Ins.  Co.,  8  Gray,  199. 

Judgment  for  damages  for  personal  injuries. 
Eice  V.  Stone,  1  Allen,  o>5fJ.  United  States  Draft. 
MeCann  v.  R<mdall,  147  Mass.  81. 

The  debtor's  interest  under  an  agreement  for 
future  royalties  on  a  book.  Lord  v.  Harte,  118 
Mass.  27  i. 

Income  of  trust  fund  payable  to  the  founder  of 
the  trust.  Pacific  yat.  Bank  v.  Wind  ram,  133 
Mass.  175.      See  Squire  v.  Tellier,  185  Mass.  18. 

Interest  of  a  debtor  in  a  copartnership. 
Human  v.  Brennan,  170  Mass.  405.  The  in- 
come of  a  life  estate  given  by  husband  to  wife, 
the  debtor,  if  she  has  the  absolute  disposal  of 
such  income.  Maynard  v.  Cleaves,  149  Mass. 
307.     See  Ricketson  v.  Merrill,  147  Mass.  81. 

The  interest  of  the  debtor,  as  mortgagee,  even 
before  foreclosure,  though  it  was  claimed  that 
he  had  assigned  the  mortgage  and  note  secured 
thereby  to  a  party  in  another  State,  the  plain- 
tiff claiming  that  the  assignment  was  fraudulent. 
Moody  V.   Gay,  15  Gray,  457. 

The   debtor's    interest   in  the  surplus,   on    the 


110  PLEADINGS    AND    PRACTICE    IN    EQUITY 

loreclosiire  of  a  mortgage  of  an  estate  on  which 
the  ereditor  had  an  attachment  lien.  Wijjgin  v. 
Hey  wood,   118  Mass.   514. 

The  following  are  some  of  the  recent  cases 
showing  what  property  cannot  be  reached: 

Interest  in  the  corpus  of  a  trust  estate.  Craw- 
ford V.  Lam/maid,  171  ]\Iass.  309.  Interest  in 
bonds  to  be  subscribed  for.  Pettihone  v.  Toledo 
R.  R.  Co.,  148  Mass.  411. i  Claim  for  personal 
injuries  before  judgment.  Bennett  v.  Sweet,  171 
Mass.  600.  Future  rents  on  a  lease,  plaintiff 
having  a  remedy  at  law,  ScJdeisinger  v.  Sher- 
viau,  127  Mass.  200.  Interest  of  the  debtor  in 
income  of  a  trust  founded  by  another  receiv- 
able at  the  discretion  of  the  trustee.  Foster  v. 
Foster,  133  Mass.  179.  See  also  RifsscU  v.  3Iil- 
ton,  133  Mass.  180.  Property  in  ))Ossession  of 
receivers  before  dividend  is  declared.  Col.  Book 
Co.  V.  Be  Golytr,  llo  .Afass.  (59.     See  115  Mass.  98. 

Money  or  fund  in  the  custody  of  the  court  or  its 
clerk  for  a  certain  purpose,  unless  the  creditor  has 
a  lien  on,  or  assignment  of  it.  Tuck  v.  Manning, 
150  Mass.  211.     An  interest  in  property  exempt 


1  In  Pettibone  r.  Toledo  R.  R.  Co.,  148  lAIass.  419,  the 
Court  said:  "No  case,  however,  appears  in  our  reports, 
where  under  this  process  a  plaintiff  has  been  permitted  to 
compel  a  debtor  to  execute  on  his  part  an  executory  con- 
tract made  with  other  persons,  or  lias  been  permitted  to 
execute  it  for  him  in  order  that  the  plaintiff  may  compel 
those  other  persons  to  perform' their  part  of  the  contract  for 


DECREES 


111 


from  attachment.  VcnaUe  v.  Rickenher<j,  l-")2 
Mass.  04.  The  interest  of  the  defendant  in 
money  due  from  a  beneficiary  association.  Ge>:r 
V.  Hort'.n,  159  Mass.  259,  by  reason  of  the  statute, 
c.  119,  §  17,  R.  L.  See  Tohei/  v.  M,  115  Mass.  98. 
A  debtor's  license  to  sell  liquor,  which  is  not 
assiirnable.      KochJer  v.   Ohcn,  08  Hun,  Oo. 

Debts  due  to  the  debtor  which  are  not  de- 
scribed, and  the  names  of  the  parties  from 
whom  due  are  not  stated.  Amy  v.  Manning, 
149  Mass.  487.  Whether  a  safe  deposit  com- 
]iany  can  lie  held  chargeable  on  a  bill  in  equity 
for  property  in  a  box  of  the  debtor  —  of  which 
he  alone  has  the  key  —  in  its  vault,  has  not  been 
determined.  Such  safe  deposit  company  cannot 
be  held  as  trustee  of  the  debtor  in  an  acti(m  at 
law.  Bottom  v.  Clarke  and  trnisfee,  7  Cush.  487. 
See  Law  of  Safe  Deposit  Cos.,  9  Har.  Law  Review, 
135  (1895). 

Where,  as  in  MCann  v.  Randall,  147  Mass. 
81,  a  defendant,  in  violation  and  in  contempt  of 
an  injunction  atrainst  him,  has  disposed  of  prop- 
erty contrary  to  the  order  of  the  court,  the  conrt 
can  render  a  money  judgment  against  him  for  the 
amount  of  the  value  of  such  property,  or  at  least 
to  the  amount  in  value  of  it  which  the  plaintiff 
has    lost   by    reason   of   such   violation   and    con- 

the  benefit  of  the  plaintiff;  neither  has  any  claim  for  un- 
liquidated damages  for  the  breach  of  an  executory  contract 
been  reached  and  applied  under  this  procedure." 


112  PLEADINGS    AND    PRACTICE    IN    EQUITY 

tempt.  TliL'  cuiirt  m;iv  also  render  a  nionev  iudf- 
ment  against  a  fraudulent  vendee,  who  has  put 
the  property  conveyed  to  him  by  the  debtor  in 
fraud  of  a  creditor,  beyond  the  reach  of  the  court. 
Taylor  v.  Taylor,  74  Me.  582.  Wait  on  Fraudu- 
lent Conveyances,  §  177,  and  notes;  Huhhell  v. 
Currier,  10  Allen,  387;  and  see  United  Shoe 
Machine  Co.  v.  Holt,  185  Mass.  97 :  ''  When  a  fraud- 
ulent vendee  has  so  concealed  or  disposed  of  the 
property  that  creditors  cannot  reach  or  identify 
it,  the  creditor  may,  in  equity  at  least,  receive 
the  proceeds  or  value  thereof."  Solimky  \.  Lin- 
coln, 85  Tenn.  372.  A  money  judgment  may  be 
rendered  against  defendant  for  property  obtained 
by  fraud,  when  the  property  cannot  be  recovered. 
Light  V.  Jacobs,  183  Mass.  206.  .See  Otis  v.  Otis, 
It) 7  Mass.  245. 

Instead  of  an  injunction  or  a  decree  requiring 
a  defendant  to  restore  premises  to  the  condition 
they  were  in  before  the  defendant's  wrongful 
act,  if  such  act  was  not  wilful  or  malicious,  but 
the  result  of  an  innocent  mistake,  the  court  mav 
decree  the  plaintiff  to  have  compensation  in  money 
for  the  injury.  Lynch  v.  Union  Inst,  for  Savings, 
159  Mass.  306;  Brande  v.  Grace,  154  Mass.  210; 
Milkman  X.  Ordway,  106Mnss.  232.  So,  where  the 
encroachment  on  plaintiff's  right  was  "uninten- 
tional and  slight."  Harrington  v.  McCarthy,  169 
Mass.  492. 

"It  is  for  the  court  in  the  exercise  of  a  sound 


DECREES  113 

discretion  to  determino  whether  a  mandatory  in- 
junction shall  issue.  It  will  not  be  issued  when 
it  appears  that  it  will  operate  inequitably  and 
oppressively,  nor  when  it  appears  that  there  has 
been  unreasonabh;  delay  by  the  party  seeking  it 
in  the  enforcement  of  his  rights,  nor  when  the 
injury  complained  of  is  not  serious  or  snlistantial, 
and  may  be  readily  compensated  in  damages,  while 
to  restore  things  as  they  were  Ijefore  the  acts  com- 
plained of  would  subject  the  other  party  to  great 
inconvenience  and  loss."^  Starkie  v.  BicJanond, 
155  Mass.  195;  Netv  York  City  v.  Pine,  185  C.  S. 
93,  contains  a  review  of  many  cases  on  this  point. 
When  it  is  apparent  that  the  plaintiff  had  no 
ground  for  proceeding  in  ecpiity,  the  court  will 
not  award  money  damages,  but  will  remit  him  to 
an  action  at  law  for  damages,  in  which  case  the 
bill  should  be  dismissed  without  prejudice.  2 
Danieirs  Ch.  PI.  .V-  Pr.  Kisl;  Tainter  \.  Cole,  120 
Mass.  1»>5.  In  a  case  under  cl.  7,  §  3,  c.  159,  R. 
L.,  where  the  only  ground  for  equity  jurisdiction 
was  the  supposed  existence  of  property  of  tlie  de- 
fendant which  could  not  be  attached  or  taken  on 
execution  in  an  action  at  law,  viz.,  a  legacy,  l)ut  it 

1  An  order  for  the  specific  performance  is  not  a  matter 
of  right,  but  of  sound  and  reasonable  discretion  in  view  of 
all  the  circumstances  of  the  case,  and  will  not  be  granted  in 
cases  of  fraud,  material  mistake,  or  of  a  hard  and  unreason- 
able bargain,  or  where  it  would  produce  injustice.  East- 
man '•.  Plumer.  46  N.  H.  464  ;  Miss.  &  Mo.  U.  Co.  c 
Cromwell.  91  U.  S.  04:3. 


114  PLEADINGS    AND    PRACTICE    IN    EQUITY 

appearing  at  the  hearing  that  the  legacy  could 
have  been  attached  by  trustee  jjrocess  in  such 
action  at  law,  the  bill  was  dismissed.  Vant'uie  v. 
Morse,  104  Mass.  275.  Laches  and  unreasonable 
delay  in  enforcing  one's  rights  are  frequently  a 
valid  objection  to  equitable  relief.  Couke  v.  Bar- 
rett, 155  Mass.  418 ;  Clafiin  v.  Low,  157  Mass.  257. 
And  there  are  other  grounds  for  refusing  to  order 
specific  ])erforniauce.  Wei^tern  R.  11.  Co.  v.  Bah- 
cock,  B  Met.  340 ;  ilayex.  v.  Harmony  Grove  Ceme- 
tery, 108  Mass.  402;  Chute  v.  Quincy,  156  Mass. 
189,  and  cases  cited.  Putnam  v.  Grace,  101 
Mass.  247;  want  of  "Mutuality." 

Process  for  the  execution  of  a  final  decree  is 
not  to  issue  until  the  expiration  of  thirty  days 
after  the  entry  of  such  decree  unless  by  consent, 
or  unless  the  party  against  whom  the  decree  is 
entered  waives  an  appeal  in  writing.  R.  L.,  c. 
159,   §  34. 

In  a  decree  on  a  bill  to  redeem  from  a  mort- 
gage permitting  the  plaintiff'  to  redeem,  the  time 
within  which  the  payment  should  be  made  should 
be  definitely  stated ;  and  that  in  default  of  such 
payment  of  the  amount  due  the  bill  should  be 
dismissed.      Bennett  v.    Codnian,  158  Mass.    371.^ 

1  "  No  decree  or  order  made  in  any  suit  or  matter,  re- 
quiring any  person  to  do  an  act  thereby  ordered,  can  be 
enforced  by  attachment;  unless  such  decree  or  order  states 
the  time,  or  the  time  after  service  of  the  decree  or  order, 
within  which  the  act  is  to  he  done,"  and  unless,  &c.  2 
Daniell's  Ch.  PL  &  Pr.   1043. 


DECREES  115 

Time  given  by  such  decree  may  be  extended. 
Rovsa  V.   Davis,   175  Mass.   117. 

A  decree  should  not  undertake  to  deal  with  ob- 
jections to  a  masters'  report.  Their  only  use  is 
to  lay  the  foundation  for  exceptions  to  the  report. 
Whitworth  V.  Loivell,  178  Mass.  50. 

A  purchaser  pendente  lite  is  bound  by  the  decree, 
though  not  made  a  party.  Long  v.  Eiehards,  170 
Mass.  126;  Snoivman  v.  Harford,  57  Me.  397; 
Mellen  V.  Moline  Iron  Worku,  131  U.  S.  352,  371. 

Equity   Rule   XXXVII 

"The  solicitor  of  the  party  in  whose  favor  a 
decree  or  order  is  passed  shall  draw  the  same; 
and  without  reciting  previous  proceedings,  de- 
crees shall  begin,   in  substance,   as  follows: 

"  '  Tins  case  came  on  to  he  heard  [or  to  he  further 
heard,  as  the  fact  may  he\,  at  this  term,  and  v:as 
argued  hy  counsel;  and  thereupon,  iipon  considera- 
tion thereof,  it  is  ordered,  adjudged,  and  decreed,'  &c. 

"But  if  it  is  intended  that  the  final  decree  shall 
serve  as  a  record  of  the  case,  proper  recitals  of 
previous  proceedings  may  be  inserted  therein." 
The  terms,  conditions,  and  directions  in  all  de- 
crees should  be  stated  fully  and  plainly;  if  the 
decree  is  by  the  consent  of  the  parties,  it  should 
be  so  stated  in  body  of  the  decree. 

A  decree  ordering  the  owners,  trustees,  of  the 
"Westminster    Chambers"    to    remove    all    said 


116  PLEADINGS    AND    PRACTICE    IN    EQUITY 

building  above  the  height  of  ninety  feet,  &c.,  is 
given  in  full  in  Attorney  General  v.  Williams,  178 
Mass.  335. 

A  decree  declaring  certain  conveyances  fraudu- 
lent and  void  as  to  a  trustee  in  bankruptcy  is  given 
in  Allen,  trustee,  v.  French,  180  Mass.  487. 

Injunctions  restraining  the  defendants  from  in- 
timidating or  interfering  with  the  employees  of 
the  plaintiffs  in  "strikes  "are  found  in  Vee/elan 
V.  Gunther,  167  Mass.  92,  and  in  Plant  v.  Wood, 
176  Mass.  492. 

A  decree  declaring  the  defendant  estopped  from 
setting  up  a  mortgage  on  an  estate  by  reason  of 
its  failure  to  disclose  it  to  a  subsequent  mort- 
gagee when  it  was  the  defendant's  duty  to  do  so. 
Nickerson  v.  Massaehusftts  Title  Co.,  178  Mass. 
310.     For  further  forms  of  decrees,  see  p.  174. 

Note  —  When  an  instrument  is  reformed  by  order  of  the 
court,  it  is  not  done  by  writing  anything  in  or  upon  the 
original  instrument,  or  by  erasures  on  it,  but  by  setting 
out  how  the  instrument  should  read  when  reformed.  Craig 
c.  Kittredge,  23  X.   H.  236. 


INJUNCTIONS  117 


INJUNCTIONS 

Injunction  has  been  called  the  "strong  arm" 
of  a  court  of  equity.  As  a  process  for  preventing 
wrongs  and  preserving  rights  it  is  in  many  cases 
the  most  useful,  ready,  and  efficient  process  known 
to  the  law.  ^ 

The  remedy  for  the  deficiencies  of  the  common 
law,  so  forcibly  stated  by  Mr.  Merwin  in  the  mar- 
ginal note,  is  found  in  writs  of  injunction  in  courts 
of  equity,  by  which  a  threatened  injury  may  often 
be  prevented;  or,  if  it  be  done  already,  the  injury 
in  many  cases  can  be  repaired,  by  requiring  the 
property  and  the  parties  to  be  placed  in  the  con- 
dition they  were  before  the  injury  or  wrong  was 
done,  and  irreparable  damage  in  many  cases  may 

1  "It  is  clear  that  any  system  of  law."  said  the  late 
Elias  Merwin,  -'  which  can  interpose  only  after  a  wrong  has 
been  done,  which  is  impotent  to  stay  the  hand  of  the  wrong- 
doer and  can  deal  with  him  only  after  he  has  accomplished 
his  threatened  injury ;  which  is  powerless  to  compel  men  to 
perform  their  obligations,  and  can  only  give  damages  for 
their  non-performance:  which  cannot  take  notice  of  or 
repair  the  mistakes  and  omissions  that  so  often  occur  in 
business  affairs,  is,  as  a  remedial  system,  grossly  imperfect 
and  deficient  —  but  such  is  the  common  law."  Mei-win  on 
Equity,  §  35. 


118  PLEADINCJS    AND    PRACTICE    IN    EQUITY 

be  averted  by  compelling  })artics  to  perform  tlieir 
just  obligations  and  duties.  Smith  v.  Smith,  148 
Mass.  1. 

The  cases  in  which  injunctions  may  be  issued 
are  as  various  and  numerous  as  are  the  matters 
which  are  subject  to  tlie  jurisdiction  of  equity 
courts;  and  it  is  im])Ossible  within  the  limit  set 
to  these  notes  to  cite  or  refer  to  any  considerable 
number  —  in  proportion  to  all  —  of  the  reported 
cases  in  which  injunctions  have  been  issued  even 
in  this  State. 

A  reference  to  a  few  only,  especially  those  which 
show  what  the  necessary  averments  of  a  bill  on 
which  an  injunction  is  sought,  are,  how  an  injunc- 
tion is  ol)tained,  and  how  treated  thereafter,  is  all 
that  can  be  done.      Besides  the  general  powers  of 
courts  of  equity  as  such,  it  is  provided  by  R.  L., 
c.    166,  §  1,  that    "The    courts  of  the    Common- 
wealth,   the    justices   thereof,    and    trial   justices 
shall  have  and  exercise  all  the  powers  which  may 
be  necessary  for  the  performance  of  their  duties. 
They  may  issue  all  writs,  warrants,  and  processes, 
and  mai^e  and  award  judgments,  decrees,   orders, 
and  injunctions  which  may  be  necessary  or  proper 
to  carry  into  effect  the  powers  granted  to  them, 
and,   if  no  form  for  such  writ  or  process  is  pre- 
scribed by  statute,  they  shall  frame  one  in  con- 
formity with  the  principles  of  law  and  the  usual 
course  of  proceedings  in  the  courts  of  this  Com- 
monwealth." 


INJUNCTIONS  110 

As  before  stated  (p.  13)  courts  of  equity  as 
such  have  no  criminal  jurisdiction;  hut  though 
the  "maintenance  of  a  nuisance  is  a  crime,  that 
does  not  deprive  a  court  of  equity  of  the  power  to 
abate  it. "      Carlton  v.  Ruyg,  149  Mass.  550. 

"As  a  general  rule,  also,  courts  of  equity  will 
not  interfere  with  criminal  prosecutions.  Davis  cf- 
Farnum  Man.  Co.  v.  Los  Angeles,  189  U.  S.  207; 
Init  like  most  such  rules,  it  has  many  exce})tions. 
It  is  well  settled  that  courts  of  equity  may  restrain 
by  injunction  the  enforcement  of  a  penal  ordi- 
nance, if  its  enforcement  will  cause  an  irrepar- 
able damage  to  the  plaintiff  in  a  useful  business, 
as  a  putting  out  of  the  tires  of  a  foundry  furnace 
during  Sunday.  Manhattan  Iron  Works  v.  French, 
12  Abbott,  New  Cases,  N.  Y.  44G.  See  valualde 
collection  of  cases  on  this  point  by  Professor 
Ames  in  Cases  in  Equity  Jurisdiction,  Vol.  II, 
p.  109,  note  3. 

The  court  will  restrain  by  injunction  a  threat- 
ened lew  of  an  execution  upon  real  estate  which 
is  not  legally  subject  to  such  levy.  Stevensx.  Mul- 
ligan, 167  Mass.  84;  OHare  v.  Downin(i,\?>0  Mass. 
116  ;  see   Watson  v.  Sutherland,  5  Wall,  74. 

An  injunction  will  not  be  granted  on  the  appli- 
cation of  a  private  person  to  protect  purely  public 
rights.     Springer  v.  Walters,   139  111.   419.^     Nor 

1  But  a  court  of  equity  may  enjoiu  the  owner  of  land 
from  defacing  or  meddling  with  graves  on  land  dedicated  to 
the    public   for  burial  purposes,  at   the    suit  of    any  party 


120  PLEADINGS    AND    PRACTICE   IN    EQUITY 

to  prevent  the  use  of  stable  licensed  by  the  Board 
of  Health.      White  v.  Kenny,  157  Mass.  12. 

Nor  will  an  injunction  be  granted  except  in 
cases  of  great  urgency  which  Avill  interfere  with 
important  public  improvements,  unless  the  plain- 
tiff's private  rights  are  invaded.  Booraem  v.  N.  H. 
R.  Co.,  40  N.  J.  Eq.  350.  Or  when  it  would  be 
against  public  policy.  Beasley  v.  Texas  cf-  Pacific 
Ry.  Co.,  191  U.  S.  492. 

Injunction  was  not  granted  to  restrain  a  singer 
from  singing  for  others  than  the  ])laintiff,  while 
the  latter  is  unable  to  pay  the  salary  due  her. 
She  was  not  obliged  to  take  a  bond  for  it.  Rice 
V.   B'Arville,  102  Mass.  559.1 

In  order  to  entitle  a  i)arty  to  relief  liy  injunc- 
tion  the  plaintiff    must    show  that  the   injury  of 

having  deceased  relatives  or  friends  buried  therein.  Worm- 
ley  r.  Worniley,  09  N.  E.  R.  865. 

1  As  a  rule  the  court  will  not  specifically  enforce  con- 
tracts for  personal  service;  thoujrh  it  mny  —  upon  his  ex- 
press covenant  not  to  enter  into  the  service  of  a  competitor 
in  business  —  restrain  a  person  from  doing  so,  but  it  will 
depend  upon  the  circumstances  of  the  case  ;  the  court  might 
be  reluctant  to  do  that  which  must  result  in  his  enforced 
idleness.  But  covenants  not  to  carry  on  a  certain  business 
within  a  limited  territory  for  a  limited  time,  are  often  en- 
forced specifically.  Roper  r.  Upton,  125  Mass.  258;  W. 
Rogers  IVLanfg.  Co.  v.  Rogers.  58  Conn.  356. 

An  injunction  should  not  be  granted  in  an  improper 
case,  even  with  the  consent  of  botli  parties,  which  mny  be 
to  the  damage  or  prejudice  of  third  parties.  ^A'hepley  ?•. 
Erie  R.  Co.,  6  Blatchf.  '271. 


INJUNCTIONS 


121 


which  he  complains  or  which  is  threatened,  is, 
or  will  be,  "certain  and  substantial,  and  not 
slight  or  theoretical."  Dowuimj  v.  Elliott,  182 
Mass.   28. 

And  it  is  always  within  the  sound  judicial  dis- 
cretion of  the  court  to  «rrant  an  injunction,  and 
upon  such  terms  and  conditions  as  to  security 
for  any  damages  or  costs  as  justice  may  require. 
Ashburner's  Principles  of  Equity,  476  (1902). 
And  it  is  also  within  the  same  discretion  of  the 
court  to  modify,  dissolve,  or  continue  the  injunc- 
tion as  justice  requires,  and  the  court  may  reciuirc 
a  party  to  give  a  bond  of  indemnity  to  the  other 
to  save  him  against  loss  and  costs  by  granting  or 
dissolving  an  injunction.  Foster  v.  Goodrich,  I'll 
Mass.  176:  2  Daniell's  Ch.  PI.  k  Pr.,  166G;  Poor 
V.  Carleton,  3  Sumner  (C.  C),  75. ^ 

The  prayer  ought  to  specifically  and  definitely 
state  the  acts  and  conduct  which  the  plaintiff 
desires  should  be  enjoined,  and  the  order  or  in- 

1  This  discretion  is  a  jmbcial  discretion  controlled  by 
pri:iciplf^s  and  well-established  rules,  as  stable  as  are  those 
which  obtain  in  the  administration  of  common  law,  where 
discretion  is  given  to  the  court ;  yet  the  general  ignorance 
of  these  rules  and  —  it  has  been  said  —  of  equity  juris- 
prudence generally,  with  the  prejudices  of  the  old  common 
law  lawyers  a<;aiiist  it,  kept  equity  out  of  its  proper  place  in 
the  judicial  system  of  Massachusetts  for  over  a  hundred 
years.  See  interesting  history  of  "  Chancery  in  Massachu- 
setts," by  E.  n.  Woodruff,  now  professor  in  the  Law  School, 
Cornell  University,  found  in  Vol.  V,  Law  Quarterly  Review 
(London,  1SS9),  p.  370. 


122  PLEADINGS    AM)    PRACTICE    IN    EQUITY 

junction  when  issued  should  be  clear  and  explicit 
in  its  tei-nis,  without  the  necessity  of  resorting 
to  the  bill  to  find  out  what  it  means.  jSuIlivan 
V.  Jiidah,  4  Paige,  440;  Fletcher  on  Eq.  Pr., 
§§  509-513. 

An  injunction  will  not  he  granted,  or,  if  granted 
on  an  ajjiilication  ex  parte,  "will  be  dissolved 
when  it  appears  that  the  refusal  to  grant,  or  the 
dissolution  of,  the  injunction  cannot  lead  to  any 
injury,  or  cause  any  loss  to  the  plaintiff  which 
cannot  be  repaired  in  damages,  or  affect  the 
merits  of  the  controversy  on  a  trial  in  due 
course."  Shaw,  C.  J.  Wing  v.  Fidrhaven,  8 
Cush.   304. 

An  injunction  should  not  issue  on  an  ex  parte 
application  unless  it  ai)})eai-s  upon  the  facts  stated 
in  the  bill  or  affidavits  that  unless  an  injunction 
or  restraining  order  issue  the  interests  of  the  plain- 
tiff will  suffer,  or  be  left  in  peril  of  being  lost. 
The  mere  allegation  of  such  danger  is  not  suffi- 
cient ;  such  facts  must  be  stated  as  will  reason- 
ably satisfy  the  court  of  the  existence  of  such 
danger.  2  High  on  Injunctions,  3d  ed.,  §  1581; 
see  Kenney  v.  Consumer' s  Gas  Co.,  142  Mass.  417. 

No  injunction  or  other  proceeding  shall  be 
ordered  until  the  bill  is  filed  unless  for  good 
cause  shown.  Equity  Rule  IT.  Winsloiv  v.  Nay- 
son,   113  Mass.  410. 

No  injunction  shall  issue  except  upon  a  bill 
which  has  been  sworn  to,  or  upon  verification  of 


INJUNCTIONS  123 

the  material  facts   by  affidavit.      Standing  Order 
6  of  the  Superior  Court.  ^ 

It  is  said  in  several  cases  that  a  preliminary 
injunction,  before  a  hearing,  will  not  be  granted 
where  the  material  allegations  are  merely  on  in- 
formation and  belief.  Ockenholdt  v.  Frohnan,  iiO 
111.  App.  300;  Patterson  v.  MiUer,  4  Jones  E(j.  451. 

It  is  not  usually  sufficient  that  the  material 
facts  constituting  the  equity  on  which  the  injunc- 
tion is  sought  are  verified  by  the  plaintiff  "upon 
information  and  belief."  2  High  on  Injunctions, 
3d  ed.,  §  1567. 

Excepting,  perhaps,  for  an  ad  interim  injunc- 
tion to  prevent  an  imi)ending  irreparalde  injury. 

And  upon  an  application  for  an  injunction  all 
the  equities  will  be  considered,  and  the  injury 
which  would  lie  done  to  the  defendant  l)y  grant- 
ing it  will  be  compared  with  those  which  would 
result  to  the  plaintiff  from  withholding  it.  Lynch 
V.  Union  Inst,  for  Savitigs,  loO  Mass.  300;  Brande 
V.  Grace,  154  Mass.  210;  Winij  v.  Fairhaven,  8 
Cush.  363. 

'  Form  of  Oath. 
Suffolk  ss.       On  this  day  of  1004,  be- 

fore me  personally  appeared  and  made  oath 

that  he  had  read—  or  heard  read  — the  above  bill  of  com- 
plaint and  knows  the  contents  thereof,  and  that  the  same  is 
trne  of  his  own  knowledge,  except  as  to  matters  which  are 
therein  stated  to  be  on  his  infoimation  and  belief,  and  as  to 
those  matters  he  believes  them  to  be  true. 

Justice  of  the  Peace. 


124  PLEADINGS    AND    PRACTICE   IN    EQUITY 

A  mandatory  injunction  does  not  always  issue 
as  a  matter  of  course,  even  when  it  is  shown  that 
there  has  been  a  violation  of  an  established  right. 
S])ringfield  v.  Springfield  St.  Ry.,  182  Mass.  44; 
Lynch  v.  Union  Inst,  for  Savings,  159  ]\Iass.  306 ; 
Starkie  v.  Richmond,  155  i\Iass.  188;  Jackson  v. 
Stevenson,  156  Mass.  496 ;  Brande  v.  Grace,  154 
Mass.    210. 

When  the  plaintiff's  rights  have  been  invaded 
knowingly  and  wilfully  by  the  defendant,  the 
court  will  not  compel  the  plaintiff  "to  sell  his 
rights  at  a  valuation,  but  will  compel  the  de- 
fendant to  restore  the  premises  as  near  as  may  be 
to  their  original  condition,"  Tucker  \.  Howard, 
128  Mass.   361. 

After  hearing  in  addition  to  issuing  a  per- 
petual injunction  "the  court  may,  in  order  to 
prevent  multiplicity  of  suits,  and  to  do  complete 
justice  between  all  the  parties,  award  damages 
for  the  injury  already  done."  Winsloivx.  Nayson, 
113  Mass.  411.  But  where  the  court  will  decree 
payment  of  damages  in  lieu  of  injunction,  see 
decrees,   p.   112. 

In  "order  to  give  effectual  notice  of  the  injunc- 
tion to  a  party  to  whom  it  is  directed,  it  is  not 
necessary  that  it  be  served  on  him  by  an  officer. 
Actual  notice  is  sufficient  to  ])ut  him  under  the 
obligation  to  obey  it.  2  Beach  on  Modern  Eq. 
Pr.,  §  894;  1  High  on  Injunctions,  §  17;  Vol.  II, 
§  1444 ;  In  re  Lennon,  166  U.  S.  554. 


INJUNCTIONS  125 

In  certain  cases  on  defendant's  counsel.  Moors 
V.  Ladenburg,  178  Mass.  272, 

Effectual  notice  may  be  given  by  telegram.  £x 
parte  Lanijley  et  al.,  13  Ch.  Div.  110. 

As  to  notice  to  corporations  in  such  cases,  see 
Trimmer  v.  Fenn.  M.  R,  36  X.  J.  Eq.  411. 

Of  course,  service  .should  be  made  by  an  officer, 
when  it  can  be  done. 

An  injunction  restraining  a  non-resident  from 
prosecuting  a  suit  in  this  State  may  be  served  on 
the  attorney  here  of  such  non-resident.  Moors  v. 
Ladenburg,  178  Mass.  272. 

It  is  the  duty  of  every  person,  whether  directed 
to  him  by  name  or  otherwise,  to  obey  the  injunc- 
tion, and  persons  may  be  bound  by  the  injunction 
though  not  mentioned  in  it  by  name.  Ex  parte 
Lennon,  64  Fed.  Rep.  320;  Plant  v.  Wood^,  176 
Mass.  492 ;  In  re  Debs,  158  U.  S.  575. 

An  application  can  be  made  by  the  party  en- 
joined for  a  dissolution  or  modificaticui  of  the 
injunction  at  any  time  if  he  has  not  violated  it, 
but  such  application  may  come  too  late.  Florence 
Seu'iitg  Machine  Co.  v.  Grover  ^  Baker  S.  Co., 
110  Mass.    1. 

Section  32  of  c.  159,  R.  L.,  referring  to  the 
Supreme  Judicial  and  the  Superior  Courts,  pro- 
vides that  "  a  justice  of  either  of  said  courts 
shall  not  dissolve  an  injunction  which  has  been 
issued  by  the  other  court,  or  by  a  justice  thereof, 
or  interpose  in  any  proceeding  in  the  equity  juris- 


126  PLEADINGS   AND    PRACTICE    IN    EQUITY 

diction  of  the  other  court,  except  as  provided 
in  sections  twenty-two,  thirty,  and  thirty-one  "' 
of  c.   159,   R.  L. 

As  long  as  the  injunction  stands  it  must  be 
obeyed,  even  thougli  improperly  or  irregularly 
issued.      United  States  v.  Dehs,  64  Fed.  Rep.  724. 

Upon  the  issuing  of  an  injunction  ex  parte,  the 
plaintiff  should  be  ready  upon  short  notice  to  at- 
tend a  hearing  on  motion  of  the  defendant  to 
modify  or  dissolve  it,  and  at  such  a  hearing 
the  fact  that  such  injunction  has  been  issued 
does  not  make  a  2^r^7»a  facie  case ;  he  must  then 
go  forward  and  show  that  he  is  entitled  to  have  it 
continued.^ 

An  ad  interim  injunction  is  a  restraining  order 
in  force  only  to  the  time  appointed  for  a  hearing 
on  the  motion  or  prayer  for  an  injunction;  and  it 
expires  at  that  time,  unless  ordered  to  continue 
further;  while  an  injunction  "imtil  further  or- 
der "  continues,  unless  by  some  further  order  it 
is  dissolved  or  modified.  2  Daniell's  Ch.  PI.  & 
Pr.,  1666/-^ 

1  The  better  and  safer  practice  in  order  to  effectually 
dissolve  an  injiinctidii.  is  to  do  it  by  an  interlocutory,  and 
not  in  the  final,  decree ;  for  an  appeal  from  an  interlocutory 
decree  does  not  suspend  the  operation  of  it,  but  an  appeal 
from  a  final  decree  does,  so  that  if  the  order  dissolving  an 
injunction  is  in  a  final  decree  appealed  from,  it  man  be  that 
such  an  appeal  would  suspend  the  operation  of  that  part  of 
the  decree  dissolving  the  injungtion. 

2  A  stipulation  or  agreement  of  the  parties  filed  that  the 


INJUNCTIONS  127 

An  in  junction  against  the  defendants  under 
R.  L. ,  c.  159,  §  3,  el.  7  to  reach  and  apply 
equitable  assets  of  the  principal  defendant  to  the 
payment  of  the  plaintiff's  claim  made  more  than 
four  months  before  the  defendant  is  adjudicated 
a  bankrupt  under  the  bankruptcy  law  of  the  United 
States  creates  a  lien  on  such  assets  which  is  valid 
against  the  trustee  in  l>ankruptcy  proceedings; 
such  injunction  having  an  effect  equivalent  to 
an  attachment  in  an  action  at  law.  Snyder  v. 
Smith,  18o  Mass.  58. 

subject-matters  of  the  suit  shall  remain  in  statu  quo  pending 
nei;otiatioMs  or  hearing  has  the  effect  of  an  injunction. 
Waterman  r.  Clark,  58  Vt.  601.  Such  stipulations  are  com- 
mon, but  they  should  be  in  writing  and  filed  in  the  case. 

And  the  stipulating  party  may  by  his  stipulation  incur  a 
liability  quite  simihir  to  that  ordinarily  arising  from  an 
injunction  Ijond.      Moore  r.  Dianient,  41  N.  J.  Eq.  612. 

It  has  been  said  that  a  bond  of  indemnity  ought  to  be 
given  by  the  plaintiff  in  all  cases  before  an  injunction  issue; 
but  there  are  many  cases  where  lelief  in  equity  is  sought  bv 
persons  who  are  not  able  to  give  such  bond  or  to  furnish  it 
seasonably ;  and  there  appears  to  be  no  more  rea.son  for 
requiring  a  bond  in  such  cases,  than  for  requiring  it  before 
a  person  can,  on  a  writ  in  an  action  at  law,  make  an  attach- 
ment of  property,  or  cause  an  arrest  of  the  defendant. 
There  are  cases  where  any  requirement  to  give  notice  to  the 
defendant  of  an  application  for  an  injunction  might  defeat 
the  object  of  the  bill,  as  suits  under  clauses  7  or  8  of  §  8, 
c.   159,  R.  L.,  and  in  many  others. 


128  PLEADINGS    AND    PRACTICE   IN    EQUITY 


CONTEMPTS 

"The  summary  power  to  commit  and  punish  for 
contempts  tending  to  obstruct  or  degrade  the  ad- 
ministration of  justice,  is  inherent  in  courts  of 
chancery,  and  other  superior  courts,  as  essential 
to  the  execution  of  their  powers,  and  to  the 
maintenance  of  their  authority,  and  is  part  of 
the  law  of  the  land,  within  the  meaning  of  Magna 
Charta  and  of  the  12th  Article  of  our  Declaration 
of  Rights."  Gkay,  C.  J.,  in  Carticrii/hfs  Case, 
114  Mass.  230;  Ex  parte  Robinson,  19  Wallace, 
505 ;  In  re  Debs,  Petitioner,  158  U.  S.  595 ;  Ten- 
ners Case,  23  N.  H.  162. 

•  The  power  to  try  causes,  to  enter  orders  and 
decrees,  is  futile  unless  the  court  has  power  to 
enforce  them.  "The  general  rule  is  well  estab- 
lished that  when  a  general  power  is  given  or  duty 
enjoined,  every  particular  power  necessary  for  the 
exercise  of  the  one,  or  the  performance  of  the 
other,  is  given  by  implication."  Heard  v.  Pierce, 
8  Cush.  315. 

And,  if  the  court  has  jurisdiction  of  the  cause 
and  parties,  it  must,  in  the  nature  of  the  case,  be 
the  sole  judge  when  to  exercise  this  power.  The 
power  of  a  court  to  makq  an  order,  carries  with  it 
the  power  to  enforce  it;  it  would   be  vain  with- 


CONTEMPTS  t29 

out  it.      Watson  v.  Williams,  36  Miss.  331 ;   R.  L., 
c.  166,  ^1;  Inre  Debs,  158  U.  S.  595. 

"Proceedings  for  contempt  may  be  either  for 
inflicting  punishment  upon  one  who  has  wilfully 
disobeyed  the  lawful  orders  of  the  court,  or  for 
the  purpose  of  obtaining  the  result  which  might 
have  been  reached  by  the  enforcement  of  its 
decree  but  for  the  intervention  of  the  wrongful 
act  of  the  party  violating  its  order,  or  in  ap- 
propriate cases  for  both  i)urposes."  McCann  v. 
Randall,  147  Mass.   90.  ^ 

The  question  of  a  contempt  for  disobedience  of 
a  merely  coercive  decree  cannot  be  tried  by  jurv. 
"Surely  it  cannot  be  supposed  that  the  (piestion 
of  contempt  of  the  authority  of  a  court  of  the 
United  States,  committed  by  disobedience  of  its 
orders,  is  ti-iable,  of  right,  by  a  jury."  Interstate 
Commerce  Commission  v.  Brimson,  154  U.  S.  489; 
State  V.  Mathews,  37  N.  H.  450. 

Certain  contempts  are  indictable:  and  when 
one  is  indicted  for  such  contempt,  he  will  l)e 
tried  according  to  ordinary  criminal  procedure. 
But  the  enforcement  of  a  coercive  order  to  compel 
obedience  to  a  decree  of  the  court  "  is  not  in  any 
just  sense  a  punishment."  Frankel  v.  Frankel, 
173  Mass.    216. 

^  On  appeal  in  contempt  proceedings,  if  the  court  below 
had  jurisdiction,  the  court  above  will  not  further  consider 
whether  the  order  should  or  should  not  have  been  made. 
Tolman  v.  Jones,  lU  111.  147. 

9 


130  PLEADINGS    AND    PRACTICE    IN    EQUITY 

The  proceeding  for  contempt  in  a  court  of 
equity  and  an  indictment  arc  distinct  proceed- 
ings, and  "neither  is  a  bar  to  the  other."  2 
Bishop  Crim.  Law,  8th  ed.,  §  26-i,  cases  cited 
in  the  note. 

And  in  several  States,  legislative  acts  provid- 
ing that  contempts  should  be  tried  by  a  jury  have 
been  held  unconstitutional.  Carter  v.  Common- 
wealth, 96  Va.  791 ;  Arnold  v.  Commonwealth,  80 
Ky.   300;   Wijatt  v.  People,  17  Col.  272.1 

The  jurisdiction  of  the  court  over  the  parties, 
or  of  the  subject-matter,  may  be  inquired  into  by 
Habeas  Corpus.  In  re  Satvyer,  124  U.  S.  200 ; 
In  re    Watts  et  al.,   190  U.    S.    1. 

Pending  such  inquiry  the  defendant  after  he  is 
brought  into  court  may  be  bailed,  to  appear  from 
day  to  day,  or  as  the  court  may  order. 

But  the  merits  of  the  original  cause  cannot  be 
inquired  into  on  proceedings   for  contempt;   the 

1  These  decisions  are  put  on  the  gronnd  that  the  power  of 
dealing  with  contempts  —  disobedience  of  the  orders  of  the 
court  —  is  an  inherent  and  necessary  power  of  the  court  — 
a,  judicial  as  distinguished  frona  an  executive  or  legislative, 
power,  and  one  which  could  not  be  taken  away  or  usurped 
by  either  of  the  other  departments  of  the  government. 

In  Denny  v.  Mattoon,  2  Allen,  :^61.  The  Court,  by  Bige- 
Low.  C.  J.,  in  a  discussion  of  the  respective  powers  of  the 
legislature  and  the  judiciary  said,  "  It  is  the  exclusive  pro- 
vince of  courts  of  justice  to  apply  established  principles  to 
cases  within  their  jurisdiction,  and  to  enforce  their  decisions, 
by  rendering  judgments  and  executing  them  by  suitable 
process." 


CONTEMPTS  131 

sole  question  there  is,  "  Whether  the  defendant 
has  complied  with  the  terms  of  the  decree." 
Hamlin  \.  N.  Y.,  N.  H.  ^  H.  R.  R.  Co.,  170 
Mass.  518,  550. 

A  complaint  for  contempt  in  disobe\'ing  an 
interlocutory  order  of  the  court  is  an  incident 
to  the  principal  action  and  should  be  liled  in  it. 
Winslow  V.  Nayson,  113  Mass.  411.  In  which 
case  it  was  said  that  one  may  be  held  guilty  of 
contempt  if  he  has  actual  notice  of  the  injunc- 
tion and  disobeys  it,  even  though  not  drawn  up 
or  served  on  him.  The  complaint  should  be 
specific  in  its  allegations,   and  sworn  to. 

The  court  will  never  compel  a  party  to  perform 
an  order  which  it  is  not  in  the  power  of  such  party 
to  perform. 

There  may  be  cases  where,  after  notice  to  the 
alleged  contemner,  the  complaint  has  been  heard 
and  sentence  pronounced  in  his  absence,  and  a 
warrant  or  a  mittimus  issued,  upon  which  he 
has  been  committed,  but  it  seems  to  be  the  better 
course,  at  least  more  consonant  with  proceedings 
in  criminal  cases,  of  the  nature  of  which  this  is, 
that  he  should  be  in  court  when  sentence  is  pro- 
nounced ;  and  to  secure  that,  a  writ  of  attachment 
has  recently  been  prepared,  which  may  be  served 
"in  any  other  county."  R.  L.,  c.  166,  §  13;  see 
the  proceedings  in  CartivrigMs  Case,  114  Mass. 
239. 

A    disclaimer    of   "intentional    disrespect,    or 


132  PLEADINGS   AND   PRACTICE   IN    EQUITY 

design  to  embarrass  the  administration  of  jus- 
tice," is  no  excuse  where  the  contrary  is  ap- 
parent. People  V.  Wilson,  G-i  111.  195.^  A  tardy 
and  reluctant  compliance  with  the  decree  of  the 
court  will  not  purge  the  contempt.  Snowman  v. 
Harford,  57  Me.  397. 

Advice  of  counsel  is  no  justification  for  dis- 
obeying an  injunction ;  it  only  makes  another  con- 
temner. 2  Beach  Mod.  Eq.  Pr.,  §  894.  A  person 
in  contempt  will  not  usually  be  further  heard  in 
the  case  until  he  has  cleared  himself  of  his  con- 
tempt.     Rogers  v.  Patterson,  4  Paige,  450. 

"  As  regards  the  question  whether  a  contempt 
has  or  has  not  been  committed,  it  does  not  de- 
pend upon  the  intention  of  the  party,  but  upon 
the  act  he  has  done."  Quoted  by  Gray,  C.  J.,  in 
Cartivrighfs  Case,  114  Mass.  239. 

Still  he  may  show  under  what  circumstances 
the  contempt  was  committed,  and  what  repara- 
tion, if  any,  has  been  made,  as  bearing  upon  his 

1  "  After  an  injunction  has  been  issued  upon  threats  of 
injury,  it  will  not  be  a  sufficient  answer  for  the  defendant 
to  come  in  and  say  that  he  did  not  intend  to  carry  out  his 
threats,  or  that  he  has  changed  his  wrongful  purpose.  He 
cannot  complain  if  the  court  takes  him  at  his  word.  Such 
death-bed  repentance  comes  too  late  in  a  court  of  equity." 
Merwin  on  Equity,  785. 

"  The  writ  of  injunction  shall  not  be  granted  by  any 
court  of  the  United  States  to  stay  proceedings  of  any  court 
of  a  State,  except  in  cases  where  such  injunction  may  be 
authorized  by  any  law  relating  to  proceedings  in  bank- 
ruptcy."    Rev.  St.,  U.  S.  §  720. 


CONTEMPTS  133 

punishment.  An  order  committing  a  defendant 
for  refusing  to  pay  money,  is  civil,  and  not 
criminal  in  its  nature,  and  the  court  may  refuse 
to  commit,  or  may  release  him  upon  his  show- 
ing the  court  that  he  is  unable  to  comply  with 
such  an  order.  Hendrtjx  v.  Fitzpatrick,  19  Fed. 
Rep.  810.  And  the  court  may  in  such  case 
let  him  be  examined  by  a  master  as  to  his  ability 
to  comply  with  the  order,  in  much  the  same  way 
as  when  a  debtor  arrested,  on  execution  in  an 
action  at  law,  seeks  to  be  discharged  upon  ap- 
plication to  take  the  oath  for  the  relief  of  poor 
debtors.^ 

^  The  question  of  whether  contempt  is  within  the  scope  of 
the  pardoning  power  of  the  executive  is  not  of  much  prac- 
tical interest;  it  has  not  often  arisen,  and  is  not  likely  to. 
But  the  question  with  others  arising  in  such  cases  has  been 
recently  ably  discussed  in  In  Re  Xevitt,  117  Fed.  Rep.  448 
(190:3);  the  conclusion  there  arrived  at  was  that  a  judgment 
and  sentence  for  contempt  is  not  within  the  scope  of  the 
pardoning  power  of  the  executive,  especially  if  the  order  of 
the  court  violated  was  civil  or  remedial,  instead  of  merely 
punitive. 


134  PLEADINGS    AND    PRACTICE   IN    EQUITY 


RECEIVERS 

A  RECEIVERSHIP  is  "a  remedial  agency"  em- 
ployed by  a  court  to  preserve  the  fund  or  prop- 
erty which  is  the  subject-matter  of  the  controversy 
from  spoliation,  waste,  or  destruction,  pending 
the  controversy,  so  that  it  may  be  had  to  be  dis- 
posed of  in  accordance  with  the  final  decree  of  the 
court;  "and  receivers  are  officers  of  the  court; 
their  appointment  has  no  effect  to  change  the 
title  or  create  any  lien  on  the  property."  They 
are  not  the  representatives  of  either  party,  but 
are  appointed  to  take  care  of  the  interests  of 
all  parties  under  the  directions  of  the  court. 

When  appointed  under  the  general  equity  power 
of  the  court,  they  have  no  powers  except  such  as 
are  conferred  on  them  by  the  orders  of  the  court. 
Ellis  V.  Boston,  H.  ^  E.  R.  Co.,  107  Mass.  28. 

If  appointed  under  a  statute,  they  have,  of 
course,  the  powers  conferred  by  such  statute ;  as, 
for  example,  receivers  appointed  upon  the  disso- 
lution of  a  corporation  —  §  53,  c.  437,  of  Acts  of 
1903,  or  of  Insurance  Companies,  c.  118,  §  7, 
R.  L.,  or  of  Savings  Banks,  c.  113,  §  6,  R.  L.,  or 
of  the  property  of  Absentees,  c.  144,  §  5,  R.  L. 

Their  appointment  rests  in  the  sound  discre- 
tion of   the    court;    and  the  court  may  limit  the 


RECEIVERS  135 

quantity  of  the  estate  over  which  a  receivership 
shall  be  extended. 

The  most  frequent  and  familiar  cases  where 
receivers  are  appointed  are  where  dissolution 
and  settlement  of  copartnerships  are  sought; 
cases  of  mismanagement  of  estates  by  executors, 
guardians,  or  trustees;  where  there  is  danger  of 
an  estate  or  property  being  diverted  from  its 
legitimate  uses ;  property  subject  to  mortgages, 
cases  of  insolvent  insurance,  or  beneficiary  com- 
panies; railway  and  other  corporations  when 
necessary;  and  in  cases  where  contending  parties 
have  joint  or  etpiitabie  liens  or  interests  in  a  fund 
or  property  which  is  liable  to  loss  or  waste  pend- 
ing litigation.  1 

^  A  case  illustrative  of  the  manner  in  which  justice  may 
be  worked  out  by  the  aid  of  a  receiver  in  equity,  as  well  as  of 
the  adaptability  of  decrees  in  equity  to  meet  the  exigencies  of 
each  case,  is  National  Park  Bank  r.  Goddard,  lol  X.  Y.  494: 
L.  Bros.  &  Co.,  merchant  tailors,  had  a  stock  of  garments 
in  various  stages  of  manufacture,  which  had  been  attached 
by  a  sheriff  at  the  suit  of  a  creditor  upon  a  claim  for  money 
loaned.  Others  of  their  merchandise  creditors,  who  had 
sold  them  cloth,  linings,  trimmings,  buttons,  etc.,  which 
had  entered  into  the  makeup  of  said  attached  garments, 
brought  about  fifty  replevin  suits  against  the  sheriff,  and 
the  fraudulent  vendees  to  recover  the  cloth,  linings,  trim- 
mings, buttons,  etc.,  upon  the  ground  that  these  goods  had 
been  obtained  from  them  by  and  pursuant  to  a  scheme  of 
fraud,  each  of  such  merchandise  creditors  claiming  the  right 
to  follow  and  take  his  property  in  whatever  shape  or  condi- 
tion he  could  find  it,  taking  whole  garments,  "  into  which 
had  entered  as  separate  elements  cloth  of  one  vendor,  the 


136  PLEADINGS   AND    PRACTICE   IN    EQUITY 

Upon  an  application  to  appoint  a  receiver  of  a 
corporation,  the  court  said:  "That  a  corporation 
is  insolvent;  that  all  its  property  is  mortgaged  to 
trustees  for  the  benefit  of  one  class  of  creditors ; 
that  it  owes  large  amounts  to  other  creditors,  one 
of  whom  has  attached  all  its  property ;  that  it  was 
about  to  execute  a  lease  to  the  attaching  creditor, 
for  a  long  term  of  years  at  a  rental  which  would 
not  pay  the  interest  upon  its  indebtedness;  and 
that  the  execution  of  the  lease  would  be  injurious 
to  the  interests  of  its  creditors  and  stockholders," 
does  not  state  a  case  within  the  equity  jurisdiction 
of  the  court,  to  restrain  the  corporation  from  pros- 
ecuting  its   business  and  to  appoint  a  receiver. 

linings  of  another,  and  the  buttons  of  a  third."  It  was 
plain  that  the  only  way  in  which  any  approach  to  justice 
could  be  worked  out  was  by  receivers  in  equity,  who  could 
turn  the  garments  into  money  and  distribute  the  proceeds 
in  a  just  proportion  among  those  whose  goods  had  been 
used  to  make  up  the  garments. 

The  plaintiff  filed  a  bill  in  equity,  for  the  appointment  of 
a  receiver  of  all  the  property  attached  and  replevied,  and  for 
an  injunction  restraining  the  prosecution  of  the  replevin 
suits.  It  was  held  that  the  court  had  jurisdiction  to  inter- 
vene to  prevent  the  multiplicity  of  suits  involving  conflicting 
claims  on  the  same  property  which  a  court  of  law  could  not, 
but  which  in  equity  could  be  worked  out  without  doing  in- 
justice, and  that  the  plaintiff,  though  as  an  attaching  creditor 
it  had  no  legal  title  to  the  property  attached,  yet  was  a  real 
party  interested,  and  was  entitled  to  bring  the  bill  and 
thus  to  have  the  garments  to  be  turned  into  money  by  a 
receiver,  so  that  it  could  be  distributed  in  just  and  fair  pro- 
portion among  ?.ll  the  parties  in  interest. 


RECEIVERS  187 

The  plaintiffs  cannot  maintain  this  bill  for  the 
appointment  of  such  a  receiver  "unless  upon  the 
ground  that  any  creditor  can  maintain  a  bill  in 
equity  against  an  individual  debtor  upon  like  alle- 
gations."  Pond  V.  Framingham,  ^c,  E.  R.,  130 
Mass.  195. 

And  in  a  later  case  it  said:  "We  do  not  think 
that  the  facts  that  a  corporation  is  insolvent,  that 
its  affairs  arc  in  inextricable  confusion,  and  that 
it  has  preferred  certain  creditors,  necessarily  re- 
quire the  appointment  of  a  receiver.  In  such  a 
case  the  insolvent  law  of  this  State  affords  a  com- 
plete remedy,  and  the  failure  of  the  parties  to 
avail  themselves  of  it  does  not  of  itself  furnish  a 
sufficient  reason  for  the  appointment  of  a  receiver." 
Falmouth  Bank  v  Cape  Cod  Ship  C.  Co.,  166 
Mass.   550.^ 

"A  receivership  is  not  to  be  regarded  as  an 
ordinary  incident  of  the  proceedings  to  collect  a 
debt."  Falmouth  Bank  x.  Cape  Cod  Ship  C.  Co., 
166  Mass.  550; 2  see  remarks  of  Field,  C.  J.,  in 
White  V.   White,  169  Mass.  52. 

1  As  a  general  rule  a  receiver  will  not  be  appointed  of  the 
property  of  a  copartnership  unless  the  case  is  such  as  to  jus- 
tify a  decree  for  its  dissolution  ;  and  it  is  not  uncommon  to 
refuse  to  appoint  a  receiver,  even  in  such  case  destroying  a 
valuable  business,  if  the  defendant  will  give  adequate  security 
to  the  plaintiff  to  account  for  all  the  property  and  pay  the 
plaintiff  what  may  be  found  to  be  due  to  him  on  final  settle- 
ment. 

2  The  learned  judge  in  Falmouth  Bank  v.  Cape  Cod  Ship 
Canal  Co.,  in  stating  reasons  why  a  receiver  should  not  be 


138  PLEADINGS    AND    PRACTICE   IN    EQUITY 

"The  appointment  of  a  receiver  is  not  necessary 
or  proper  as  ancillary  to  an  injunction  against 
doing  business  ultra  vires,  or  to  an  order  for  an 
account  of  property  misappropriated  by  directors. 
Ordinarily  a  receiver  will  not  be  appointed  in 
actions  against  directors  or  officers  of  a  corpora- 
tion for  misconduct  in  its  management."  "Nor 
will  such  an  appointment  be  made  when  a  receiver- 
ship would  amount  in  effect  to  a  dissolution  of 
the  corporation."  Riehardson  v.  Clinton  W.  T. 
Co.,   181  Mass.   580. 

The  propriety  of  their  appointment  cannot  be 
attacked  collaterally,  if  the  appointing  court  had 
jurisdiction. 

A  court  of  equity  cannot  take  property  or  a 
business  out  of  the  hands  of  its  owners,  whether 
individuals  or  corporations,  and  put  it  in  the  pos- 
session of  receivers,  merely  on  the  ground  that 
such  corporation  or  individuals  are  using  said 
property  un profitably  or  carrying  on  the  business 
at  a  loss,  or  because  they  are  deeply  in  debt,  if 
they  are  acting  honestly.  Besides,  if  they  whose 
interest  it  is  to  successfully  carry  on  a  business 
cannot  do  so,  it  is  not  likely  that  a  receiver  can. 

And  courts  of  equity  have  no  power  to  dissolve  a 
foreign  corporation  or  to  liquidate  its  indebtedness. 
Richardson  v.   Clinton  W.  T.  Co.,  181  Mass.  580. 

appointed  in  that  case,  mentioned  what  "  at  least  "  should 
appear,  in  order  to  justify  the  appointment  of  a  receiver  ; 
this  is  far  from  saying  that  if  those  conditions  exist  a  re- 
ceiver should  be  appointed. 


RECEIVERS 


139 


Referring  to  an  application  for  the  appointment 
of  a  receiver  of  a  private  business  corporation,  the 
court  said :  "  It  is  too  well  settled  to  admit  of  ques- 
tion that  a  court  of  chancery  has  no  peculiar  juris- 
diction over  corporations,  to  restrain  them  in  the 
exercise  of  their  powers,  or  control  their  action, 
or  prevent  them  from  violating  their  charter,  in 
cases  where  there  is  no  fraud  or  breach  of  trust 
alleged  as  the  foundation  of  the  claim  for  equit- 
able relief,  ...  and  this  rule  is  applicable  to 
stockholders  as  well  as  to  other  persons."  Tread- 
well  v.  Sahhury  M.  Co.,  7  Gray,  399.  And  it  is 
the  practice  not  to  appoint  a  receiver  without 
notice  to  the  principal  parties  in  interest  and  a 
hearing,  though  the  hearing  may  be  summary,  — 
depending  on  the  exigencies  of  the  case. 

"  Courts  of  equity  are  exceedingly  unwilling  to 
appoint  a  receiver  on  an  ex  parte  application.  It 
is  now  the  settled  practice  not  to  appoint  a  re- 
ceiver ex  parte,  thereby  depriving  a  corporation  of 
the  possession  of  its  property,  before  it  has  had  an 
opportunity  to  be  heard  in  relation  to  its.  rights," 
except  in  some  exceptional  cases.  Gluck  and 
Becker,  Receivers  of  Corporations,   §  16. 

But  there  may  be  cases  where  it  will  be  done 
without  giving  notice,  where  giving  notice  would 
defeat  the  object  of  the  appointment.  There  is 
no  inherent  power  in  a  court  of  equity  upon  such 
an  application  to  take  charge  of  and  administer 
the  affairs  of  an  insolvent  corporation,    through 


140  PLEADINGS   AND   PRACTICE   IN   EQUITY 

a  receiver,  in  the  absence  of  statutory  authority 
therefor.  Gluck  and  Becker  on  Receivers  of  Cor- 
porations, §  16;  Folger  \.  Columbian  Ins.  Co.,  99 
Mass.  267.  And  it  has  been  held  that  the  rule 
does  not  become  different  because  the  application 
for  a  receiver  of  an  insolvent  corporation  is  made 
by  the  corporation  itself,  or  with  its  consent. 

The  appointment  of  a  receiver  is  in  effect  in 
certain  cases  an  "equitable  execution."  High 
on  Receivers,  3d  ed. ,   §  5. 

For  the  authority  upon  the  dissolution  of  busi- 
ness corporations,  or  on  the  expiration  of  a  charter, 
to  appoint  receivers,  see  §  53,  c.  437,  of  Acts  of 
1903. 

And  it  is  well  settled  in  respect  to  receivers  ap- 
pointed by  different  courts  that "  that  court,  whether 
State  or  Federal,  which  first  acquires  jurisdiction 
of  the  subject-matter  or  of  the  res  and  which  is 
first  put  in  motion  will  retain  its  control  to  the  end 
of  the  controversy,  and  the  possession  of  its  re- 
ceiver will  not  be  disturbed  by  the  subsequent  ap- 
pointment of  a  receiver  by  another  court."  ^     High 

1  "  Where  conflicts  arise  between  a  court  of  the  United 
States  and  a  court  of  a  State,  as  to  the  right  to  hold  posses- 
sion of  the  property  of  a  corporation  by  a  receiver,  it  seems 
that  the  governing  principal  is,  to  consider  which  court  first 
acquired  jurisdiction  by  making  the  appointment,  which  is 
tantamount  to  a  judicial  seizure  of  the  property.  It  seems 
that  the  doctrine  of  relation  does  not  apply  in  determining 
this  question  of  jurisdiction;  so  that  it  is  not  material  in 
which  court  the  action  was  first  commenced,  but  the  material 
question  is,  which  court  first  appointed  the  receiver  with  an 


RECEIVERS 


141 


on  Receivers,  3d  ed.,  §  50.  Bill  v.  New  Albany 
R.  R. ,  2  Biss.  390.  See  3Ioran  v.  Sturgis,  154 
U.  S.  156. 

The  appointment  of  a  receiver  dissolves  attacli- 
ments  made  within  four  months.  R.  L.,  c.  167, 
§  126.  This  section  126  does  not  increase  the 
grounds  for  the  appointment  of  receivers;  it  only 
states  the  effect  upon  certain  attachments  of  the 
appointments  of  receivers. 

A  receiver  not  appointed  to  secure  the  rents 
and  profits,  ancillary  merely  to  a  real  action. 
Squire  V.Hewlett,  141  Mass.  597. 

"  When  property  has  been  put  into  the  hands  of 
a  receiver  by  a  decree  of  the  court  of  chancery, 
his  possession  is  the  possession  of  the  court  which 
appointed  him,  and  any  ri<!;hts  in  the  property 
can  only  be  asserted  by  application  to  that  court." 
mils  Y.  Parker,  111  Mass.  508;  Porter  v.  King- 
man, 126  Mass.  141.  Com.  v.  Gould,  118  Mass. 
300.     But  see  Wilson  v.  Renkin,  129  N.  C.  447. 

Funds  in  the  possession  of  a  receiver  by  the 
order  of  the  court  cannot  be  attached  or  reached 
by  bill  to  reach  and  apply.  Commomcealth 
V.  Hide  ^  Leather  Ins.  Co.,  119  Mass.  157. 
Though  by  statute  now,  dividends  after  an  order 
for  distribution  has  been  made  may  be  reached 
by  trustee  process.  R.  L.,  c.  189,  §  22.  It  is  the 
duty  of  a  receiver  to  keep  the  fund  entrusted  to 

order  to  take  possession  of  the   property."     5   Thompson's 
Commentaries  on  the  Law  of  Corporations,  §  G655. 


142  PLEADINGS   AND   PRACTICE   IN    EQUITY 

him  entirely  separate  and  distinct  from  his  indi- 
vidual funds. 

But  if  he  has  taken  possession  of  other  prop- 
erty, not  put  into  his  hands  by  the  court,  an  action 
therefor  can  be  maintained  by  the  owner  without 
leave  of  the  court.  Hills  v.  Parker^  111  Mass. 
508.  As  to  sales  made  by  a  receiver,  see  Koontz 
V.  Northern  Bank,  16  Wall.  196.  ^ 

As  to  claims  having  a  priority  against  funds  in 
hands  of  receiver.  Jones  v.  Arena  Puh.  Co.,  171 
Mass.  22. 

Receivers  are  not  liable  for  contracts  made  by 
the  party  of  whose  property  they  are  appointed, 
unless  they  assume  such  contracts  after  their  ap- 
pointment. "They  become  responsible  solely  by 
reason  of  their  own  acts."  Commoyiivealth  v. 
Franklin  Ins.   Co.,  115  Mass.  278. 

And  ordinarily  they  are  responsible  only  to  the 
court  appointing  them  for  their  official  acts,  or  for 
any  property  which  comes  into  their  possession  as 
such  receivers.     But  an  exception  exists  in  respect 

^  "  A  purchaser  under  a  deed  from  a  receiver  is  not  bound 
to  examine  all  the  proceedings  in  the  case  in  which  the  re- 
ceiver is  appointed.  It  is  sufficient  for  him  to  see  that  there 
is  a  suit  in  equity  —  or  was  one,  in  which  the  court  ap- 
pointed a  receiver  of  property;  that  such  receiver  was  au- 
thorized by  the  court  to  sell  the  propert}^ ;  that  a  sale  was 
made  under  such  authority  and  confirmed  by  the  court,  and 
that  the  deed  accurately  recites  the  property  or  interest  thus 
sold.  If  the  title  of  the  property  was  vested  in  the  receiver 
by  the  order  of  tlie  court,  it  would  in  that  case  pass  to  the 
purchaser."     Koontz  v.  Northern  Bank,  16  Wall.  196. 


RECEIVERS  143 

to  receivers  of  railroad  corporations  in  operating 
the  road.  If  such  receivers  have  the  exclusive  con- 
trol and  management  of  tlie  road  and  its  business, 
and  so  become  common  carriers,  it  seems  that  they 
may  be  sued  and  held  answerable  for  injuries  to 
property  and  persons  in  the  same  manner  as  the 
corporation  would  have  been  held  liable.  Paige  v. 
Smith,  99  Mass.  395;  Little  v.  Dusenhery,  46  N.  J. 
L.  614.  High  on  Receivers,  3d  ed.,  §  395.  See 
Tohin  V.  Central  Vt.  Ry.  Co.,  185  Mass.  337.^ 

There  is  not  a  unanimity  of  authority  as  to 
"whether  or  when  receivers  can  be  sued  without 
first  getting  leave  of  the  court  appointing  them. 

^  But  a  quite  recent  authority  says  that,  "  When  a  court  of 
competent  jurisdiction  directs  its  receivers  to  operate  a  rail- 
road and  employ  all  necessary  assistants  and  laborers  for 
that  purpose,  such  receiver  is  but  an  officer  of  the  court, 
obeying  its  orders  and  carrying  out  its  directions.  His  rela- 
tion to  the  road  and  its  operation  is  entirely  official.  .  .  . 
He  is  powerless  to  protect  himself  against  the  hazard  of  the 
acts  of  those  he  is  compelled  to  employ.  His  position  is 
analogous  to  that  of  a  public  officer  charged  with  public 
duties,  in  the  performance  of  which  he  is  compelled  to  act 
in  part  through  others.  The  employment  of  agents  is  a 
necessity,  and  expressly  directed  by  the  court;  and  if,  in  the 
performance  of  this  part  of  a  receiver's  duty,  he  is  prudent 
and  selects  only  competent  agents,  he  has  discharged  his  full 
duty.  .  .  .  When,  therefore,  no  personal  neglect  is  imputed 
to  him,  either  in  the  selection  of  agents  or  in  the  perform- 
ance of  any  duty,  but  the  negligence  charged  is  that  of  a 
subordinate  whom  the  receiver  necessarily  and  properly  em- 
ployed, the  latter  will  not  be  held  individually  responsible 
for  such  acts  of  negligence."  Gluck  and  Becker  on  Re- 
ceivers of  Corporations,  2d  ed.,  39,  97. 


144  PLEADINGS    AND    PRACTICE   IN    EQUITY 

Porter  v.  Kingman,  126  Mass.  141  ;  Wilson  v. 
Rankin,  129  N.'  C.  447  ;  Hills  v.  Parker,  111  Mass. 
508  ;  McNulta  v.  Lockridge,  141  U.  S.  327.  See 
Collection  of  Cases  on  this  point  in  Smith  on  Re- 
ceiverships.    §§  83-184  and  notes. 

A  receiver  appointed  on  a  bill  to  dissolve  a  co- 
partnership does  not  take  possession  of  the  sepa- 
rate property  of  the  members  of  the  co-partnership. 

Courts  have  power  to  order  a  receiver  to  continue 
a  business  for  the  purpose  of  preserving  the  prop- 
erty until  it  can  be  disposed  of  without  sacrifice; 
but  they  are  averse  to  being  involved  in  the  con- 
tinuous prosecution  of  private  commercial  enter- 
prises.    High  on  Receivers,  3d  ed. ,  §  480. 

Though  as  to  railroads  and  other  public  service 
corporations  when  the  public  may  be  greatly  in- 
convenienced by  the  stopping  of  the  service,  the 
rule  may  be  different.  Union  Trust  Co.  v.  III. 
Md.    Co.,  117  U.   S.   455. 

And  the  cases  are  very  rare  where  a  receiver  of 
a  private  business  corporation  should  have  author- 
ity from  the  court  to  issue  certificates  to  raise 
money  to  carry  on  business,  which  certificates  be- 
come a  first  lien  on  the  property  of  the  corporation. 
It  is  giving  the  receiver  power  to  do  more  than  the 
corporation  itself  could  do.      See  53  Ala.  237. 

The  receiver  should  not  be  interested  in  the 
property,  or  have  any  interest  with  either  party ; 
and  should  give  a  bond  with  sureties  approved 
by  the    court  for  the  faithful  performance  of  his 


RECEIVERS  145 

duties.  See  form  of  such  bond  in  Commonivealth 
v.  Gould,  118  Mass.  300.  ^  And  he  should  soon 
after  his  appointment  file  in  the  case  an  inventory 
of  the  property  which  has  come  into  his  posses- 
sion, and  must  file  reports  and  accounts  when 
ordered  by  the  court. 

Like  any  interlocutory  decree,  an  appeal  may  be 
had  from  the  appointment  of  a  receiver.  Wri[/ht  v. 
Wriffht,  13  Allen,  207. 

But  such  appeal  does  not  operate  to  stay  the 
operation  of  the  decree.  Forbes  v.  Tuckerman, 
115  Mass.   115. 

A  master  or  receiver  should  not  be  appointed  to 
convey  property  ordered  to  be  sold,  under  cl.  7, 
§  3,  c.  159,  if  the  party  who  should  make  the 
conveyance  is  within  the  jurisdiction  of  the 
court.  Russell  v.  Burke,  180  Mass.  513.  See 
pp.  105,  6,  7. 

1  The  obligee  in  this  (Cartwright's)  bond  was  the  "  Com- 
monwealth of  Massachusetts."  Tiie  obligee  in  the  bond  in 
Wilde  V.  Baker  et  als,  14  Allen,  349,  was  "George  C.  Wilde, 
clerk  of  the  court."  Receivers'  bonds  have  in  some  cases, 
in  the  Superior  Court,  been  made  to  the  Treasurer  and 
Receiver-General  of  the  Commonwealth.  It  would  seem 
desirable  that  there  should  be  as  much  uniformity  in  this 
respect  in  these  bonds  as  possible.  And  several  reasons 
might  be  stated  why  they  should  all  be  to  the  Common- 
wealth, as  obligee.  Receivers'  bonds  in  Xew  York  are  re- 
quired to  be  given  to  "  The  People."  Revised  Statutes  of 
X.  Y.,  Vol.  HI.,  p.  .3104.  The  bonds  required  of  receivers  in 
equity  causes  in  the  federal  courts,  and  of  trustees  in 
bankruptcy  proceedings,  are  made  to  '-the  United  States  of 
America.'' 

10 


146  PLEADINGS    AND    PRACTICE    IN    EQUITY 

But  if  the  defendant  is  nut  witliin  such  juris- 
diction, a  muster  may  be  appointed  to  convey 
it.      Wilson  V.    Martin-  Wilson,   151   Mass.    515. 

"A  receiver  is  not  authorized,  without  the  pre- 
vious direction  of  the  court,  to  incur  any  expenses 
on  account  of  property  in  his  hands,  beyond  what 
is  absohitcly  essential  to  its  preservation  and  use, 
as  contemplated  by  his  appointment."  Coivdrey 
V.  Galve><ton  R.  It. ,  93  U.  S.  352.  See  Cake  v. 
Mohun,  164  Q.  S.  311. 

"  Yet  there  is  a  discretion  on  the  part  of  the 
court  to  jtermit  this  to  be  done  temporarily  when 
the  interest  of  the  parties  seems  to  require  it." 
Cake  V.  Mohun,  164  U.  S.  311. 

As  to  the  liability  of  one  receiver  for  negli- 
gently permitting  the  other  to  misappropriate 
funds,  see  Commonwealth  v.  Ea(^le  Fire  Ins.  Co., 
14  Allen,  344. 

A  receiver  of  a  corporation  has  no  right,  out- 
side of  the  jurisdiction  of  the  tribunal  that  appoints 
him,  to  sue  in  his  own  name  —  unless  he  is  in 
some  way  assignee  of  the  claim.  Homer  v.  Barr 
P.  Co.,  180  Mass.  163.  Hayivard  v.  Leeson,  176 
Mass.  310 ;    Wilson  v.  Welch,  157  Maes.  77. 

The  court  which  appointed  a  receiver  may 
remove  him  at  any  time;  and  he  has  no  right 
of  appeal.  2  Beach,  Mod.  Eq.  Pr.,  §§  749, 
750. 

When  there  are  rival  claimants  to  a  fund  in  the 
possession  of  a  receiver,  he  may  institute  an  in- 


RECEIVERS  147 

terpleader  to  compel  them  to  interplead  and 
determine  their  rights. 

lie  is  entitled  to  reasonable  compensation  for 
his  services,  but  in  the  absence  of  an  agreement 
should  be  limited  to  "such  an  amount  as  would 
afford  a  reasonable  compensation  for  the  services 
required  and  rendered  to  a  person  of  ordinary 
standing  and  ability  competent  for  such  duties 
and  services."      Grant  \.  Bryant,  101  Mass.  567. 

But  he  will  not  be  allowed  fees  for  counsel  also, 
where  the  services  were  such  that  he  should  have 
performed  them  himself.  Wilkinson  v.  Washing- 
ton Trust  Co.,  102  Fed.  Rep.  28. 

For  forms  of  decrees  appointing  receivers  of  an 
insolvent  corporation  and  for  forms  of  proceedings 
against  the  receiver,  see  CartwrigMs  Case,  114 
Mass.  231.      See  forms  of  decrees  infra. 


1-48  PLEADINGS   AND    PRACTICE   IN    EQUITY 


NE   EXEAT 

"The  writ  of  ne  exeat  is  the  name  of  a  writ  orig- 
inally employed  in  England  as  a  highly  preroga- 
tive process  for  political  purposes,"  but  is  now 
applied  iu  civil  matters  and  only  issued  by  a 
court  of  equity.  "  It  has  never  been  issued  in 
aid  of  legal,  as  distinguished  from  equitable 
process,  or  for  the  purpose  of  obtaining  security 
from  a  defendant  in  an  action  at  law."  Moore  v, 
Valda,  151  Mass.  3G3. 

So  that  it  can  be  issued  for  equitable  demands 
only  —  as  stated  by  Shaw,  C.  J.,  in  Mice  v.  Hale, 
5  Cush.  238;  '"the  general  rule  of  practice  to  be 
gathered  from  the  cases,  we  think,  is  that  the 
writ  is  to  be  granted  only  in  a  case  of  equitable 
ascertained  debt,  to  which  affidavit  can  be  made 
with  good  degree  of  certainty ;  or  when  it  can  be 
shown  by  or  reference  to  accounts  or  to  other 
authorized  documents,  to  the  reasonable  satisfac- 
tion of  the  court,  that  something  in  the  nature  of 
an  ascertainment  of  a  debt  has  taken  place,  where- 
upon a  debt  arises." 

This  (in  1849)  was  said  to  be" "the  first  case  in 
which  an  application  had  been  made  to  the  court 
under  its  general  chancery  jurisdiction  to  issue  a 


NE    EXEAT  149 

writ  of  ne  exeaV  The  only  other  reported  is 
Moore  v.  Valda^  supra.  So  that  the  writ  of  ne 
exeat  has  not  often  heen  used  in  this  State.  In 
some  States  it  has  been  abolished  by  statute,  in 
others  it  has  become  practically  obsolete  by  the 
abolition  of  imprisonment  for  debt,  and  by  the 
methods  provided  by  statute  for  the  arrest  and 
holding  to  bail  of  defendants  about  to  leave  the 
State.  1 

^  It  is  generally  understood  that  under  §  8  of  c.  159, 
R.  L.,  by  a  declaration  in  a  bill  inserted  in  a  writ,  the  de- 
fendant may  be  arrested  on  the  same  reasons  and  in  the 
same  way  substantially  as  is  provided  for  the  arrest  of  a 
defendant  on  mesne  process  in  an  action  at  law.  §§  1  and  2, 
ch.  168,  R.  L.  See  Worthington  v.  Waring,  157  Mass.  427. 
This  power  in  said  §  8,  of  c.  159,  appears  to  have  come  into 
the  Revised  Laws  from  c.  383  of  the  Acts  of  1887,  — 
though  no  reference  to  that  Act  is  found  in  the  margin, 
and  all  of  said  c.  383  was  expressly  repealed  by  c.  227  of  the 
Revised  Laws. 


150  PLEADINGS   AND    PRACTICE    IN    EQUITY 


CASE  RESERVED  OR  REPORTED 

"A  JUSTICE  by  whom  a  case  is  heard  for  final 
decree  may  reserve  and  report  the  evidence  and 
all  questions  of  law  therein  for  the  consideration 
of  the  full  court."  R.  L.,  c.  159,  §  29;  Nashua, 
^c,  R.  R.  V.  Boston,  ^c,  R.  R.,  169  Mass.  164, 

But  it  must  be  a  reservation  of  the  whole  case. 
Taft  V.  Stoddard,  141  Mass.  150. 

Upon  an  appeal  from  a  decree,  the  justice  who 
enters  it  "shall  report  the  material  facts  found  by 
him,  if  so  requested  by  the  appellant,  within  four 
days  after  the  appellant  has  been  notified  of  the 
entry  of  the  decree ;  otherwise,  such  report  shall 
be  in  the  discretion  of  the  justice."    R.  L.,  c.  159, 

A  question  arising  upon  an  interlocutory  decree 
may  be  reported  to  the  full  court  if  "  the  justice 
is  of  the  opinion  that  it  so  affects  the  merits  of 
the  controversy  that  the  matter  ought,  before  fur- 
ther proceedings,  to  be  determined  by  the  full 
court."  R.  L.,  c.  159,  §  27;  Uast  Tenn.  Land 
Co.  V.  Leeson,  178  Mass.  206.  And  may  "  stay  all 
further  proceedings  except  such  as  are  necessary 
to  preserve  the  rights  of  the  parties."  R.  L., 
c.   159,   §  27. 

A  report  of  a  case  to  the  full  court,  after  an  entry 
of  a  final  decree  which  can  be  appealed  from,  is 
irregular,     Hildreth  v.  Thibedeau  (May,  1904). 


EXCEPTIONS  151 


EXCEPTIOX.S 

"Exceptions  may  be  alleged  by  any  party  who 
is  aggrieved  Ijy  an  opinion,  ruling,  direction, 
or  judgment  of  the  Supreme  Judicial  Court  or 
Superior  Court  which  is  rendered  upon  any  matter 
of  law  in  any  civil  cause,  according  to  the  course  of 
the  common  law  or  otherwise,"  .  .  .  excepting 
in  actions  tried  by  three  justices  of  the  superior 
court  under  §  5,  c.  157,  R.  L. ,  and  except  upon 
answers  in  abatement  or  motions  to  dismiss  for 
defect  of  form  of  process.  R.  L. ,  c.  173,  §  106. 
This  includes  questions  of  law  in  suits  in  equity. 
Lorr  V.   Tremont  Nat.  Bank,  128  Mass.  349. 

This  is  a  peculiarity  of  equity  proceedings  in 
Massachusetts  and  Maine.  Elsewhere  questions 
of  law  in  suits  in  equity  are  taken  to  the  appellate 
court  only  by  appeal.  "A  bill  of  exceptions  is 
altogether  unknown  in  chancery  practice."  Taney, 
C.  J.,  in  Ex  parte  Story,  12  Peters,  343. 

An  exception  in  equity  cannot  be  taken  to  the 
full  court,  until  an  order  for  a  final  decree  has 
been  made.  Prescoft  v.  Prescott,  175  Mass.  64. 
Cnless  reported  under  §  27,  c.  159,  R.  L. ,  or 
reserved  under  §  29,  c.  159,  R.  L. 

There  is  no  exception  to  an  answer  to  a  bill  for 
relief  for    insufficiencv,     Pearson    v,     Treadicell, 


152  PLEADINGS   AND   PRACTICE   IN   EQUITY 

179  Mass.  402,  and  Equity  Rules  XVII  and 
XVIII  are  to  be  construed  as  applying  only  to 
bills  of  discovery.     Ihid. 

If  a  party  desires  to  take  a  question,  in  a  suit 
in  equity,  to  the  full  court  by  exception  instead  of 
by  appeal,  it  would  seem  that  the  law  and  rules 
relating  to  the  taking  and  tiling  of  exceptions 
must  be  the  same  as  in  actions  at  law.  R.  L., 
c.   173,   §  106. 

The  following  are  some  of  the  more  recent  cases 
in  equity  where  questions  of  law  have  been  taken 
to  the  full  court  by  exceptions.^  Prescott  v.  Pres- 
cott,  175  Mass.  64;  McMurtrie  v.  Guiler  et  al,  183 
Mass.  451. 

Though  the  right  to  take  a  question  of  law  to 
the  full  court  by  exception  in  a  suit  in  equity  is 
well  established,  there  are  advantages  in  taking 
up  such  questions  by  appeal  rather  than  by  excep- 
tion. An  appeal  is  a  right  not  depending  on  al- 
lowance by  the  court;  it  is  more  appropriate  and 
convenient,  and  less  technical;  and  questions  in 
matters  of  discretion  may  be  taken  to  the  full 
court  by  appeal,  but  not  by  exception. 

1  In  Tyndale  r.  Stan  wood  et  nL,  it  was  held  that  questions 
of  law  arising  at  hearings  of  Probate  Appeals  may  be  taken 
to  the  full  court  by  exception.     (May,  1904.) 


APPEALS  153 


APPEALS 


"  A  PARTY  who  is  aggrieved  by  a  final  decree  of  a 
justice  of  the  Supreme  Judicial  or  Superior  Court, 
may  within  thirty  days  after  the  entry  thereof 
appeal  therefrom."     R.  L.,  c.  159,  §  19. 

"Upon  appeal  from  a  final  decree,  the  justice 
of  either  court  by  whom  it  was  made,  may 
make  such  orders  for  the  appointment  of  re- 
ceivers, and  of  injunction  or  prohibition,  or  for 
continuing  the  same  in  force,  as  are  needful  for 
the  protection  of  the  rights  of  parties,  until  the 
appeal  shall  be  heard  by  the  full  court;  subject, 
however,  to  be  modified  or  annulled  by  the  order 
of  the  full  court  upon  motion,  after  the  appeal  is 
taken."  R.  L.,  c.  159,  §  21.  How  and  by  whom 
such  orders  or  decrees  may  be  modified,  see  §  22, 
c.  159. 

"  A  party  who  is  aggrieved  by  an  interlocutory 
decree  of  a  justice  of  either  court  may,  in  like 
manner,  appeal  to  the  full  court."     R.  L.,  c.  159, 

§  -25. 

But  an  appeal  from  an  interlocutory  decree  does 
not  suspend  the  execution  of  the  decree,  or  stop 
the  progress  of  the  suit,  excepting  in  the  discre- 
tion of  the  court.  R.  L.,  c.  159,  §  25;  Forbes  v. 
Tuckerman,  115  Mass.  115;  Cheney  v.  Gleason, 
125  Mass.  180. 


154  PLEADINGS    AND    PRACTICE    IN    EQUITY 

But  no  appeal  lies  from  a  decree  made  l»y  con- 
sent of  the  parties.  Winchester  v,  Winchester,  121 
Mass.  127. 

A  decree  entered  in  accordance  with  the  rescrijit 
or  mandate  of  the  full  court  is  not  the  subject  of 
appeal.  Nashua,  Sj-c,  R.  R.  v.  Boston,  ^c,  R.  R., 
160  Mass.  162;  Humphrey  v.  Baker,  103  U.  S. 
736. 

But  the  full  court  will  examine  the  decree  far 
enough  to  see  whether  it  is  in  accordance  with  its 
rescript  or  mandate.  Nashua,  Sj-c,  R.  R.  v.  Bos- 
ton, ^c,  R.  R.,  169  Mass.  162:  Sewell  v.  Sewell, 
130  Mass.  201. 

When  a  final  decree  is  appealed  from  and 
entered  in  the  Supreme  Judicial  Court,  "all  pro- 
ceedings under  such  decree  shall  be  stayed,"  sub- 
ject to  modification  as  provided  in  R.  L.,  c.  159, 
§§  19,  21,  22. 

Neither  an  appeal  from  an  interlocutory  decree 
nor  an  exception  will  be  heard  by  the  full  court 
until  the  case  is  ready  for  final  disposition.  Fuller 
V.  Chajnn,  165  Mass.  1 ;  Fitzgerald  v.  Fitzgerald, 
165  Mass.  471. 

"An  appeal  from  the  decree  of  a  single  justice 
brings  up  merely  the  record  of  the  case,  and 
parties  cannot,  at  least  without  the  sanction  of 
the  single  justice,  add  to  or  diminish  the  record." 
Commomvealth  v.  Suffolk  Trust.  Co.,  161  Mass. 
550. 


APPEALS  155 

The  full  court  will  not,  on  an  appeal  from  a 
final  decree  of  the  Superior  Court,  consider  a  fact, 
though  agreed  to  by  the  parties,  which  was  not 
before  the  justice  when  the  appeal  was  taken. 
Robinson  v.   Broivn,   182  Mass.    266. 

"  No  process  for  the  execution  of  a  final  decree 
of  either  court  shall  issue  until  the  expiration  of 
thirty  days  after  the  entry  thereof,"  unless  an  ap- 
peal is  waived  as  provided  in  R.  L.,  c.  159,  §  34. 

An  appeal  from  a  decree,  final  or  interlocutory, 
does  not  depend  on  an  allowance  of  it  by  the  jus- 
tice; it  is  a  matter  of  right.  The  time  (thirty 
days)  for  claiming  an  appeal  cannot  be  extended 
by  agreement  of  the  parties  or  by  the  court.  At- 
torney  General  v.  Barbour,  121  Mass.  573. 

Where  a  defendant  appeals  from  a  decree  of  the 
Superior  Court,  and  the  plaintiff  does  not  appeal, 
the  latter  cannot  in  the  full  court  have  relief 
against  defendants,  as  to  whom  the  bill  was  dis- 
missed in  the  Superior  Court.  Kane  v.  Shields, 
167  Mass.  396 ;   Gray  v.  Chase,  184  Mass.  444. 

On  an  appeal  to  the  full  court  from  a  final 
decree,  all  previous  rulings  and  orders  appealed 
from  are  subject  to  review  by  that  court,  which 
can  render  a  decision  in  the  cause  upon  the  entire 
record. 

"An  interlocutory  decree  not  appealed  from 
shall  be  open  to  revision  on  appeals  from  the  final 
decrees  so  far  only  as  it  appears  to  the  full  court 
that  such  final  decrees  are  erroneously  affected 


156  PLEADINGS    AND    PRACTICE   IN   EQUITY 

thereby."  R.  L.,  c.  159,  §  26;  Parker  v.  Flagg, 
127  Mass.  28;  Burnett  v.  Commomvealth,  169 
Mass.  419.1 

Where  the  plaintiff  alone  appeals  from  a  decree 
in  his  favor,  but  not  satisfactory  to  him  as  to  the 
amount,  it  is  not  open  to  the  defendant  to  contend 
that  the  plaintiff  is  not  entitled  to  any  decree. 
May  V.  G-ates,  137  Mass.  389.  Though  a  party 
has  not  excepted  to  the  master's  report,  it  is  still 
open  to  him  to  claim  that  upon  the  facts  found  by 
the  master  the  decree  is,  or  is  not,  justified  by  the 
facts.     French  v.  Peters^  111  Mass.  568. 

Any  defendant  having  a  separate  or  indepen- 
dent interest  may  appeal,  though  the  other  de- 
fendants do  not  join  in  the  appeal.  French 
V.  Peters,  Admr.,  Ill  Mass.  568. 

Where  evidence  is  put  in  vrithout  objection  it 
is  too  late  on  appeal  to  object  that  the  allegations 
in  the  bill  were  not  broad  enough  to  admit  it. 
Blanchard  v.    Cooke,   147  Mass.    215. 

An  appeal  or  exceptions  may  be  waived  in  writ- 
ing in  any  case  at  law,  or  in  equity,  and  when  filed 
in  the  case  and  acted  upon  in  the  court  in  which 
they  were  taken  at  any  time  before  entry  in  the 
appellate  court.     R.  L.,  c.  173,  §  116. 

^' And  if  an  appellant  or  excepting  party,  or  if 

^  The  matter  of  costs  being  in  the  discretion  of  the  court, 
it  can  hardly  be  expected  that  an  appeal  from  a  decree  on 
the  mere  question  of  costs  would  avail  much.  See  2  Beach, 
Mod.  Eq.,  §  930. 


APPEALS  157 

the  plaintiff  in  a  case  reported  at  law,  in  equity 
or  in  probate  proceedings,  neglects  to  enter  the 
appeal,  exceptions  or  report  in  the  Supreme  Judi- 
cial Court,  or  to  take  the  necessary  measures  by 
ordering  proper  copies  to  be  prepared  or  other- 
wise for  the  hearing  of  the  case,  or  if  an  excepting 
party  neglects  to  provide  a  transcript  of  the  evi- 
dence or  of  the  instructions  within  the  time 
ordered  by  the  justice  under  the  provisions  of 
§  111,  the  court  in  which  the  appeal  was  taken 
or  by  w'hich  the  exceptions  were  allowed  or  the 
case  reported  may,  upon  the  application  of  the 
adverse  party,  and  after  notice  to  all  parties  in- 
terested, order  that  the  appeal  be  dismissed,  the 
exceptions  overruled,  or  the  report  discharged,  and 
that  the  judgment,  oi)inion,  ruling,  order  or  decree 
appealed  from,  or  excepted  to,  be  affirmed."  R.  L., 
c.  173,  §  115 ;  Burlingame  v.  Bartlett,  161  Mass. 
593.  But  before  exceptions,  which  have  been 
filed  in  a  cause,  can  be  dismissed  for  non-entry 
in  the  Supreme  Judicial  Court,  they  must  have 
been  passed  upon  by  the  justice  before  whom 
the  cause  was  tried. 

If  by  accident  or  mistake  an  ajipeal  from  a  final 
decree  has  not  been  seasonably  claimed,  a  party 
desiring  to  appeal,  may  within  one  year  after  the 
entry  of  the  decree,  ''petition  the  full  court  for 
leave  to  appeal,  wdiich  may  be  granted  upon 
terms."     R.   L.,   c.    159,   §  28. 


158  PLEADINGS    AND    PRACTICE    IN    EQUITY 


AMENDMENTS 

Although  the  R.  L.,  c.  173,  §  48,  relating  to 
amendments,  does  not  apply  in  terms  to  suits  in 
equity,  it  does  apply  "to  amendments  whereby  an 
action  at  law  is  changed  into  a  suit  in  equity,  and 
it  is  in  accordance  with  the  general  principles 
applicable  to  amendments  of  bills  in  equity,"  and 
"the  recent  practice,  both  in  law  and  in  equity, 
has  been  liberal  in  the  allowance  of  amendments." 
Kingv.  Hoives,  181  Mass.  445;  Equity  Rule  XXII. 

"The  provisions  of  law  allowing  amendments 
are  highly  remedial,  and  are  construed  most  lib- 
erally to  cancel  error  and  mistake,  and  to  advance 
justice  and  right."  George  v.  Reed,  101  Mass. 
378;  Byers  v.  Franklin  Coal  Co.,  106  Mass.  131. 

If  it  appears  that  the  cause  for  which  the  bill 
was  filed  is  not  within  the  jurisdiction  of  the 
court,  or  that  the  proposed  amendment  will  make 
it  an  entirely  new  case,  not  the  "cause  for  which 
it  was  brought, "  it  should  not  be  allowed.  King 
V.  Hoives,  181  Mass.  445. 

But  the  allowing  amendments,  and  on  what  terms, 
is  largely  Avithin  the  discretion  of  the  court,  even 
to  changing  a  suit  in  equity  into  an  action  at  law, 
or  vice  versa.  Merrill  v.  Beckwitli,  168  Mass.  72; 
R.  L.,  c.  173,  §  52. 


AMENUMEXrS  lo9 

"When  a  demurrer  is  sustained,  either  for  defect 
in  form  or  for  want  of  equity,  the  usual  mode  is 
to  allow  the  plaintiff  a  reasonable  time  thereafter 
to  amend  the  liill  for  the  purpose  of  supplying  the 
defect  or  alleging  new  or  additional  grounds  for 
the  equitable  relief  which  he  seeks,  and  such 
amendments  are  always  allowed  unless  sufficient 
cause  is  shown  to  the  contrary.  .  .  .  The  exercise 
of  the  authority  given  to  the  court  in  this  respect 
is  "left  to  a  sound  judicial  discretion."  Mer- 
chant''»  Bank  of  Nashua  v.  Stevenson^  7  Allen,  489. 
But  in  this  case  plaintiff  was  not  allowed  to  amend 
his  bill  after  a  demurrer  to  it  had  been  sustained, 
as  it  was  adjudged  that  he  had  been  guilty  of  gross 
laches  in  the  prosecution  of  his  suit,  and  in  apjily- 
ing  for  leave  to  amend. 

As  to  the  rule  in  respect  to  amendments  in  the 
federal  courts,  see  Hardin  v.  Boyd^  113  U.  S.  761. 

And  there  can  be  no  exception  in  equity  to  the 
allowance  of  an  amendment,  it  being  a  matter  of 
discretion.      Tufts  v.   Waxynan,  181  Mass.  120. 

The  court  may  on  motion  allow  an  answer  to  be 
withdrawn  in  order  to  permit  a  defendant  to  file  a 
demurrer  or  plea,  but  when  this  should  be  done 
depends  upon  the  stage  of  the  case,  and  what  ques- 
tion is  intended  to  be  raised  liy  such  demurrer  or 
plea.     See  For/g  v.  Price,  145  Mass.  513. 

The  prayer  may  be  amended  after  hearing. 
Mears  v.   Bole,   135  Mass.   508. 

In  Nichols  V.  Rogers,  139  Mass.  146,  it  was  held 


160  PLEADINGS   AND    PRACTICE   IN   EQUITY 

that  if  the  original  bill  was  insufficient,  it  could 
not  be  hcljjed  by  an  amendment  setting  up  new 
matters  which  occurred  subsequent  to  the  filing  of 
the  bill. 

For  a  case  amending  and  consolidating  three 
actions  at  law  into  one  bill  in  equity,  see  Smith 
V.  Butler,  176  Mass.  38.  As  to  the  service  of 
notice  of  motions  in  suits  in  equity,  see  Equity 
Rule  XXIII ;  and  in  actions  at  law,  see  Common 
Law  Rules  XXIX  and  Foley  v,  Talbot,  162  Mass. 
462.1 

1  As  to  hearings  in  Suifolk  of  motions  in  cases  pending  in 
the  Superior  Court,  in  other  counties.  The  motion  should 
be  filed  in  the  case  where  it  is  pending;  and  if  the  parties 
cannot  agree  upon  a  time  for  hearing  it,  upon  application 
to  the  court,  it  may  appoint  a  time  for  hearing  the  motion 
in  said  first  division  of  ecjuity  in  Boston  upon  proof  by- 
affidavit  of  due  notice  of  the  time  appointed  given  to  the 
adverse  party ;  —  Ordeis  2,  3,  4,  5,  and  6  of  the  Superior 
Court  for  the  disposition  of  business  in  Suffolk.  R.  L., 
c.  159,  §  35.  But  "  causes  in  equity  from  other  counties 
will  not  be  heard  on  their  merits  in  Suffolk  except  by  agree- 
ment of  counsel  or  special  order  of  court."  —  Order  10. 


BILLS    OF   REVIEW  161 


BILLS   OF   REVIEW 

Bills  of  review  lie,  it  is  said,  in  only  three 
cases;  For  error  of  law  on  the  face  of  the  record; 
for  new  matter  which  has  arisen  since  the  decree 
was  entered;  and  for  newly  discovered  material 
evidence. 

Discussions  of  such  bills  are  in  Elliott  v.  Bal- 
com  et  al.,  11  Gray,  286;  Hendryx  v.  Perkins,  114 
Fed.  Rep.  801  (Opinions  by  Colt,  Putnam,  and 
Aldrich,  JJ.);  Nashua,  cj-c,  R.  R.  v.  Boston, 
^c,  R.  R.,  169  ^lass.  157.  An  especially  valu- 
able note,  containing  a  review  of  American  deci- 
sions, is  found  in  Society  v.  Watson,  3  Am.  &  Eng. 
Decisions  in  Equity,  29. 

In  Clapp  V.  Thaxter,  7  Gray,  381,  the  Court 
says,  "A  bill  of  review  must  be  heard  on  one  of 
two  grounds, — error  in  law  apparent  on  the 
record,  or  the  discovery  of  new  facts,  which  could 
not  have  been  used  when  the  decree  was  passed." 
It  will  not  lie  to  correct  a  merely  formal  error, 
where  the  decree  is  not  materially  wrung. 

A  bill  of  review  will  not  lie  until  the  final 
decree  has  been  entered.  Plaisted  v.  Cooke,  181 
Mass.  118,  and  "no  decree  can  be  said  to  be 
entered  of  record  until  it  is  formally  drawn  out 

11 


102  PLEADINGS    AND    PRACTICE    IN    EQUITY 

and  filed  by  the  clerk."     Thompson  v.   Goulding^ 
5  Allen,   84. 

A  consent  decree  obtained  by  fraud  cannot  be 
impeached  by  bill  of  review,  but  only  by  original 
bill  in  the  nature  of  bill  of  review.  Watts  v. 
Ri(X^  192  111.  127.  Sec  Buffington  v.  Harvey, 
95  U.   S.   99. 

As  a  general  rule  all  the  parties  to  the  orig- 
inal bill  are  necessary  parties  to  a  l)ill  of  review. 
Story's  Eq.  PI.,  §409. 

And  it  must  set  out  in  full  the  pleadings,  pro- 
ceedings, and  final  decree,  but  not  the  evidence. 
Nashua,  cfc,  R.  R.  v.  Boston,  ^c,  R.  R.,  169 
Mass.   157. 

The  limitation  of  a  year  for  writs  of  review  in 
actions  at  law  affords  "a  close  and  forcible  "  an- 
alogy to  bills  of  review  in  equity,  and  to  vacate 
a  decree  entered  by  fraud  the  bill  must  be  filed 
within  one  year  ordinarily  after  the  petitioner 
had  notice  of  it.     Evans  v.  Bacon,  99  Mass.  213. 

Also  in  the  case  of  bills  of  review  for  newly 
discovered  evidence.  Conant  v.  Perkins,  107 
Mass.   79. 

Where  a  judgment  had  been  rendered  by  fraud 
—  though  the   fraud  was  only  "silence"^  —  and 

1  "Lord  Blackburn  was  of  opinion,  with  some  hesitation, 
that  where  A  was  under  an  obligation  to  speak  and  in 
breach  of  that  obligation  held  his  tongue,  his  silence  would 
be  fraudulent  if  he  held  his  tongue  with  the  intention  of  in- 
ducing B  to  act  upon  the  belief  that  the  reason  why  he  held 
his  tongue  was  because  he  had  nothing  to  say." — Ashburner's 
Principles  of  Equity,  400. 


BILLS   OF   REVIEW  163 

mistake,  which  was  not  discovered  until  the 
plaintiff  had  lost  his  right  to  a  review,  "there 
being  no  other  remedy  open  to  him  he  may  have 
relief  in  chancery  by  injunction."  Curru'r  v. 
Esty,  110  Mass.  536;  Brooks  v.  Z,  182  Mass.  413. 

Where  a  nuisance  —  Ijell  ringing  —  had  been 
enjoined,  but  which  had  afterwards  been  legalized 
by  the  legislature,  a  bill  of  review  was  held  to  be 
the  proper  remedy  to  have  the  injunction  dissolved. 
Saivyer  v.  Davis,  136  Mass.  239. 

If  a  review  of  a  decree  is  sought  on  the  ground 
of  new  facts,  they  must  be  relevant  and  material, 
and  such  as  might  have  produced  a  different  result, 
and  it  must  be  shown  why  they  were  not  brought 
out  in  the  original  suit ;  and  even  then  it  rests  in 
the  discretion  of  the  court;  for  the  original  decree 
may  have  been  acted  upon,  so  that  to  disturb  it 
would  occasion  loss  or  damage  to  innocent  parties. 
A  bill  of  review  brought  to  reverse  a  decree  for 
error  on  the  face  thereof  may  be  filed  without  leave 
of  court.  Elliott  V.  Balcom,  11  Gray,  286;  Nashua, 
^c,  R  R.  V.  Boston,  ^c,  R.  R.,  169  Mass.  157. 

But  it  appears  to  be  the  general  practice  to 
obtain  leave  by  petition  to  file  it  in  all  cases. 
And  always  the  petition  must  be  filed  as  soon  as 
it  can  be,  after  the  discovery  of  the  error  or  the 
new  matter.  Laches  is  a  serious  obstacle  in  the 
way  of  relief  in  many  cases  in  equity,  but  espe- 
cially so  in  petitions  for  review  of  decrees.  Pea- 
hody  V.  Flint,  6  Allen,  52. 


164  PLEADINGS    AND    PRACTICE    IN   EQUITY 

"Nothing  can  call  forth  this  court  into  activity 
but  conscience,  good  faith,  and  reasonable  dili- 
gence."    Smith  V.   Clay,  3  Bro.  Ch.  640.1 

After  the  entry  of  a  final  decree  in  equity,  as 
after  the  entry  of  a  final  judgment  in  a  suit  at 
law,  the  case  is  finally  disposed  of  by  the  court, 
subject  to  such  rights  of  appeal  (if  any)  as  the 
statute  gives,  and  the  court  has  no  further  power 
to  deal  with  the  case,  except  upon  a  bill  of  review. 
This  does  not  apply  to  an  order  for  a  decree,  or  an 
order  for  a  judgment  at  law,  but  it  is  applicable 
to  the  entry  of  the  formal  final  decree,  or  the  final 
judgment.  If,  on  account  of  mistake  or  for  other 
good  cause,  a  party  needs  to  change  his  case,  a 
bill  of  review  is  open  to  him.  White  v.  Gove, 
183  Mass.  333.  See  Hildreth  v.  Thihedeau,  185 
Mass.  (May  20,  1904). 

The  difference  between  a  bill  of  review  and  a 
hill  in  the  nature  of  a  bill  of  review  is  stated  in 
Dexter  v.  Arnold,  5  Mason  C.  C.  303,  an  instruc- 
tive case  on  many  points  in  such  bills. 

1  Where  a  review  was  sought  on  the  ground  of  error  of 
counsel,  a  judge  recently  said — "Indulgence  is  sometimes 
shown  to  parties  who  are  not  familiar  with  the  practice  in 
equity,  but  it  is  not  safe  to  rely  upon  the  expectation  of  such 
indulgence.  The  proper  conduct  and  performance  of  the 
business  of  the  court  requires  that  counsel  should  be  familiar 
with  the  rules  and  practice ;  and  it  is  not  unlikely  that  one 
may  now  and  then  have  to  suffer  for  the  good  of  the  greater 
number." 


COSTS  165 


COSTS 

*'In  suits  in  equity  and  in  other  civil  actions 
and  proceedings  in  which  no  provision  is  ex- 
pressly made  by  law,  the  costs  shall  be  wholly 
in  the  discretion  of  the  court,  but  no  greater 
amount  shall  be  taxed  therein  than  is  allowed 
for  similar  charges  in  actions  at  law."  R.  L., 
c.   203,   §  14. 

In  many  respects  costs  are  regulated  by  Equity 
Rules  XII,  XVI,  XVII,  XVIII,  XX,  and  XXXV. 

A  motion  to  discontinue  without  costs,  being  a 
question  of  judicial  discretion,  the  "decision  must 
depend  on  the  peculiar  circumstances  of  each  case. 
Whitten  v.  Whitten,  5  Cush.  42. 

On  final  decree  costs  are  not  allowed  one  party 
or  the  other  as  a  matter  of  right,  or  of  course; 
and  not  given  to  either  without  an  express  decree. 
Stone  V.  Locke,  48  Me.  425. 

Generally,  however,  costs  are  given  to  the  pre- 
vailing party,  but  not  necessarily.  Saunders  v. 
Frost,  5  Pick.  271 ;  Tkomais  v.  Beals,  154  Mass.  55. 

And  there  are  cases  when  the  apparently  losing 
party  is  entitled  to  costs,  —  as  the  defendant  is, 
where,  before  suit,  he  has  duly  tendered  all  that 
the    plaintiff    is  entitled   to   receive;    or,    where 


166  PLEADINGS   AND   PRACTICE   IN    EQUITY 

the  plaintiff's  bill  contains  unfounded  charges 
of  fraud ;  or,  where  the  plaintiff  has  been  guilty 
of  laches;  or,  where  the  defendant  is  merely  a 
stakeholder.  See  also  Burnett  v.  Commonwealth, 
169  Mass.  429. 

There  are  cases  where  neither  party  should  have 
costs.  Bartlett  v.  Johnson,  9  Allen,  580;  Wood- 
ward V.  Phillips,  14  Gray,  132 ;  Bi/er  v.  Shurtleff, 
112  Mass.  170;  Seivall  \.  Sewall,  130  Mass.  201. 

Where  the  final  decree  is  silent  as  to  costs 
neither  party  takes  them.  Alvord  v.  Sto7ie,  78 
Me.  296. 

The  court  may  apportion  the  costs  between  the 
parties.  Piatt  v.  Squire,  6  Gush.  551 ;  Pa7'k  v. 
Johnson,  7  Allen,  378.  Much  depends  upon  the 
way  the  case  has  been  conducted. 

As  a  rule,  "  taxable  costs  are  full  indemnity  for 
the  expenses  of  the  suit."  Newton  Rubber  Works 
V.  Be  Las  Casas,  182  Mass.  436 ;  Rowland  v. 
Haddock,  183  Mass.   360. 

But  where  a  fund  or  estate  is  the  subject  of 
litigation,  costs  may  be  paid  out  of  it.  Morse  v. 
Stearns,  131  Mass.  389;  Abbott  v.  Bradstreet,  3 
Allen,  587 ;  Loring  v.  Thorndike,  5  Allen,  257 ; 
Totvle  V.   Swasey,  106  Mass.   100. 

Where  a  suit  is  necessary  to  clear  up  an  ambi- 
guity in  a  will  or  other  instrument,  costs,  including 
counsel  fees,  may  be  allowed.  Boicditch  v.  Soltyk, 
99  Mass.  136 ;  Esty  v.  Clark,  101  Mass.  36. 

Where   a   suit   is    brought    by    one   of    several 


COSTS  167 

persons  having  a  common  interest  in  a  fund 
—  for  the  preservation  of  the  fund  —  he  may  be 
allowed  costs  and  counsel  fees.^  Davis  et  al.  v. 
Bay  State  League,  158  Mass.  434 ;  Ex  parft? 
Jaffray,  1  Lowell,  321 ;  Trustees  v.  Greenough, 
105  U.  S.  527;  but  see  Stratton  v.  Physio.  Med. 
Coll.,  149  Mass.  505,  where  one  had  no  valid 
ground  for  his  claim. 

As  to  costs  on  bills  to  redeem  from  mortgages, 
see  R.  L.,  c.  187,  §  24;  Seivall  v.  Seivall,  130  Mass. 
201.  Denied  to  mortgagee  when  he  refused  to 
render  an  account.  Rand  v.  Cutler,  155  Mass. 
451.     Given  in  Brown  v.  Bank,  148  Mass.  300. 

In  cases  of  interpleader  costs  of  all  parties  may 
be  paid  out  of  the  fund.  Bliss  v.  Am.  Bible  Soc, 
2  Allen,  334.  But  should  not  be  allowed  one  who 
makes  an  unjust  claim  upon  the  fund.  Cohh  v. 
Rice,  130  Mass.  231. 

And  if,  in  the  case  of  an  interpleader,  "the 
plaintiff  could  easily  have  satisfied  himself  as 
to  the  facts,  and  the  bill  was  not  necessary,  and 
his  conduct  was  unreasonable  and  vexatious,"  he 
may  be  charged  with  costs.  lasigi  v.  Chicago  B. 
^  Q.  K,  129  Mass.  46. 

So  also  a  trustee  who  has  mingled  trust  funds 

^  "  But  the  power  of  the  court  to  allow  the  complainant  a 
solicitor's  fee  to  be  taxed  as  costs,  or  taken  from  the  fund,  is 
at  least  dangerously  arbitrary,  and  not  to  be  extended  to 
doubtful  cases."  Lippincott  r.  Shaw  Carriage  Co.,  34  Fed. 
Rep.  570. 


168  PLEADINGS    AND    PRACTICE    IN    EgUITY 

with  his  own  property  may  be  chartied  witli  the 
expense  of  taking  an  account.  Bogle  v.  Bogle^  3 
Allen,  158. 

In  a  bill  to  redeem  against  two,  the  one  who 
had  received  rents  and  profits  more  than  enough 
to  pay  the  mortgage  debt  was  ordered  to  pay  the 
surplus  and  the  costs.  Merriain  v.  Goss,  139 
Mass.  77. 

A  next  friend,  as  such,  is  not  liable  for  costs. 
Crandall  v.  Slaid,  11  Met.  288.  Nor  is  a  guar- 
dian, except  in  certain  cases.  Taylor  v.  Lovering^ 
171  Mass.  303. 

Where  counsel  fees  are  ordered  to  be  paid  out 
of  a  fund,  the  amount  is  the  comj)ensation  usually 
"paid  to  officers  for  services  of  a  similar  char- 
acter."    Frost  V.    Belmont,   6  Allen,   152. 

In  cases  of  interpleader,  the  plaintiff,  a  mere 
stakeholder  and  in  no  fault,  is  usually  entitled  to 
liis  costs  out  of  the  fund.  Loring  v.  Thorndike, 
5  Allen,  270. 

Wbere  one  solicitor  appeared  and  filed  the  same 
answer,  having  the  same  defence,  for  each  of  sev- 
eral defendants,  one  bill  of  costs  only  was  allowed 
him.      Tgrrell  v.   Washburn,  6  Allen,  466. 

A  plaintiff,  or  petitioner,  if  he  is  a  non- 
resident, or  goes  abroad  to  reside,  may  be  re- 
quired to  give  security  for  costs.  2  Beach  Mod. 
Eq.  Pr.,  §  1031  et  seq.     R.  L.,  c.  173,  §§  39  to  42. 

After  entry  of  a  final  decree  "without  costs," 
in  favor  of  the  defendant,  the  case  will  not  be  re- 


COSTS  169 

opened  for  a  bearing  on  the  question  of  costs. 
Bradlee  v.  Appleton  et  ux.,  2  Allen,  93. 

As  a  general  rule  an  appeal  does  not  lie  from  a 
decree  upon  the  mere  question  of  costs,  unless  in 
cases  where  they  are  given  or  withheld  contrary 
to  a  statute,  or  to  strict  legal  right.  2  Beach 
Mod.  Eq.  Pr.,  §  930  and  notes.  Bond  v.  Fa>/, 
1  Allen,  212.1 

Agreements  of  attorneys  relative  to  an  action 
or  proceeding  shall  be  in  writing;  otherwise  they 
shall  be  of  no  validity.  R-  L.,  c.  173,  §  70;  iVt/e 
V.  0.  a  R.  R.,  124  Mass.  241. 

But  it  has  been  held  that  this  does  not  apply 
to  "agreements  made  in  open  court."  Savage  \. 
Blanchard,  148  Mass.  348. 

"  If,  upon  the  hearing  of  an  appeal  or  excep- 
tions in  an  action  at  law,  a  suit  in  equity  or  other 
proceeding,  it  appears  that  the  appeal  or  excep- 
tions are  frivolous,  immaterial,  or  intended  for 
delay,  the  court  may,  either  upon  motion  of  a 
party  or  of  its  own  motion,  award  against  the 
appellant  or  excepting  party  double  costs  from 
the    time  when  the  appeal  was  taken  or  the  ex- 

1  When  a  question  of  costs  in  an  action  at  law  is  taken  to 
the  full  court,  "  The  proper  amount  to  be  allowed  is  to  be 
determined  in  the  first  instance  by  the  clerk  on  the  taxation 
of  costs.  From  his  decision  an  appeal  will  lie  to  a  judge  of 
the  Superior  Court  and  from  his  ruling  on  the  matter  of  law 
an  appeal  will  lie  to  this  court,  or  the  question  of  law  may 
be  brought  here  on  the  bill  of  exceptions."  Harding  r. 
Riley,  181  Mass.  334. 


170  PLEADINGS    AND    PRACTICE    IN    EQUITY 

ceptions  were  allowed,  and  also  interest  from  the 
same  time  at  the  rate  of  twelve  per  cent  a  year 
on  any  amount  which  has  been  found  due  for  debt 
or  damages,  or  which  he  has  been  ordered  to  pay, 
or  for  which  judgment  lias  been  recovered  against 
him,  or  may  award  any  part  of  such  additional 
costs  and  interest.  R.  L.,  c.  156,  §  13.  East 
Term.  Land  Co.  v.  Lee.son  et  al,  185  Mass.  4 ; 
Howland  v.  Rooke,  158  Mass.  590. 

If  the  plaintiff  prevails  in  a  suit  in  equity  against 
an  executor  to  recover  a  trust  fund,  held  by  the 
testator,  and  payable  at  his  death,  the  decree 
should  provide  that  an  execution  should  issue  as 
at  common  law,  for  the  sum  so  found  due,  against 
the  goods  and  estate  of  the  testator  in  the  hands 
of  the  executor,  and  another  execution  for  the 
costs  to  be  taxed  by  the  clerk  against  the  exec- 
utor personally.      Taft  v.   Stotv,  174  Mass.   171. 


FORMS 

(§  10,  c.  223  of  1883.) 

Form  of  Bill. 

Commonwealth  of  Massachusetts. 
Suffolk  ss.  Superior  Court  in  Equity. 

A.  B.  of  in  the  county  of 

and  C.  D.  of  in  the  county  of 

Plaintiffs, 

against 
E.  F.  of  in  the  county  of 

and  G.  H.  of  in  the  county  of 

Defendants. 
Bill  —to  redeem  —  to  reach  and  apply  —  to  dissolve 
partnership,  &c. 

1. 
2. 
3. 

4. 

5. 


1. 
2. 
3. 


And  the  plaintiffs  pray 


Solicitor  of  the  plaijitiffs. 


For  form  of  oath  when  necessary,  see  p.  123. 

Suits  in  equity  may  be  brought  in  any  county  in 
which  a  transitory  action  at  law  between  the  same 
parties  might  be  brought.     (§  5,  c.  159,  E.  L.) 


172  FORMS 

Form  of  Demurrer. 

Suffolk  ss.  Superior  Court  in  Equity. 

A.  B.  et  al.  v.  C.  D.  et  aJs. 

Demurrer  of  [specifying  which  if  not  all  of  the 
defendants]. 

This  defendant  [or  these  defendants]  demurs  to 
the  plaintiff's  bill  and  for  causes  of  the  demurrer 
shows 

1.  That  the  plaintiff  has  not  stated  in  his  bill  such 
a  cause  as  entitles  him  to  any  relief  in  equity  against 
this  defendant  [or  these  defendants]. 

2.  Because  the  plaintiff's  bill  is  multifarious  in 
that  it  appears  therein  that  the  same  is  brought 
against  this  defendant  [or  these  defendants]  and 
several  other  persons  therein  named  for  distinct 
matters  and  causes  in  several  [or  one,  as  the  case  may 
be]  whereof  this  defendant  [or  these  defendants]  is 
not  in  any  manner  interested  or  concerned. 

3.  Because  it  appears  by  this  bill  that  one  J.  D. 
of  within  the  jurisdiction  of  this  court  is  a 
necessary  party  to  said  bill. 

(There  are  many  other  grounds  of  demurrer,  e.  g. 
the  statute  of  limitations,  or  the  statute  of  frauds, 
if  such  defence  appears  on  the  face  of  the  bill.  If 
the  bill  is  defective  in  form,  or  lacking  in  some 
necessary  allegations,  or  that  the  allegations  are  not 
sufficiently  definite,  the  defect  must  be  specially 
stated  or  assigned.) 

Solicitor. 

I  hereby  certify  that  the  above  demurrer  is  not 
intended  for  delay. 

Solicitor. 


FORMS  173 

Form  of  Plea. 
Suffolk  ss.  Superior  Court  in  Equity. 

A.  B.  et  al.  v.  E.  F.  et  al. 

Plea  of  defendant  [naming  them  if  less  than  all]. 

This  defendant  for  his  plea  to  said  bill  alleges  (1) 

That  [here  state   clearly   and   positively  the   fact 

[or  facts  reducing  the  issue  to  a  single  point]  relied 

upon]. 

Solicitor  of  defendant. 

(1)  A  demurrer  or  plea  need  not  contain  a  protesta- 
tion or  concluding  prayer.     (§  13,  c.  159,  R.  L.) 


Form  of  A  nsirer. 
Suffolk  ss.  Superior  Court  in  Equity. 

A.   B.    et  al.   V.  C.  D.    et  als. 
Answer  of  defendants  [or  defendants,  naming  them, 
if  less  than  all]. 

1.   This  [or  these]  defendant  admits  that 

2. 

3. 
4. 

5. 

Solicitor  of  defendant. 


174  FORMS 


FORMS   OF   DECREES 

The  following  forms  of  decrees  have  been  pre- 
pared  by  Henry  E.  Bellew,  Esq.,  the  assistant  cleik 
of  the  Superior  Court,  having  charge  of  the  Equity 
docket  in  Suffolk.  They  are  presented  as  guides  merely 
in  drafting  decrees,  and  must  be  varied  to  fit  the  re- 
quirements of  each  case.  A  decree  should  accurately, 
clearly,  and  in  proper  order  express  the  findings  and 
decision  of  the  court.  All  decrees  should  have  the 
formal  beginning  required  by  Equity  Rule  XXXVII., 
p.  115. 

Decree  on  Bill  to  Redeem. 

.  .  .  and  decreed  that  there  is  now  due  and 
owing  to  said  respondent  from  said  complainant 
upon  the  mortgage  and  mortgage  note  set  forth    in 

said  bill  of  complaint  the  sum  of ,  and  it   is 

ordered  and  decreed  that  upon  the  payment  by  said 
complainant  of  said  sum  with  interest  thereon  to  day 
of  payment,  within  thirty  days  from  the  date  of  this 
decree,  the  said  respondent  shall  execute  and  deliver 
to  said  complainant  a  discharge  of  said  mortgage 
and  shall  cancel  and  deliver  up  to  said  complainant 
the  mortgage  note  thereby  secured,  and  upon  the 
failure  of  said  complainant  to  pay  "said  sum  within 
said  time  said  bill  shall  thereupon  be  dismissed. 


FORMS  1  (  o 

Decree  for  Reference  in  Bill  to  Redeem  against 
Mortgagee  in  Possession. 

.    .    .    decreed,  that   the    cause   be    and   hereby   is 

referred  to ,  as  special  master  to  take  account 

of  all  sums  due  the  defendant  for  principal  and 
interest  on  the  mortgage  mentioned  in  the  bill,  and 
also  to  take  an  account  of  the  rents  and  profits  of 
the  premises  mentioned  in  said  mortgage  received 
by  said  defendant  or  by  any  person  or   persons    by 

his  order  or  for  his  use  since  the day  of , 

oi-  which  without  his  default  might  have  been  re- 
ceived therefrom,  and  in  case  the  said  defendant  has 
been  in  possession  and  held  and  used  the  premises, 
then  the  master  is  to  set  a  rent  thereon  and  take 
the  account  accordingly,  of  what  shall  be  due  for 
the  rents  and  profits,  which  are  to  be  deducted  out 
of  what  shall  be  found  due  to  said  defendant  for 
principal  and  interest.  And  in  taking  said  accounts 
the  master  is  to  make  all  just  allowances  to  the 
parties,  for  all  taxes  and  necessary  repairs  and  lasting 
or  permanent  improvements  now  existing,  if  any, 
which  have  been  made  or  put   by  the  defendant  on 

the  said  premises  since  the day  of ,  and 

also  the  injury,  waste,  deterioration  of  the  said  prem- 
ises, or  in  value  thereof,  if  any,  by  the  said  defendant 
or  any  person  or  persons  under  him  during  the  said 
time.     (See  Slsson  v.  Tate,  114  Mass.  497.) 

A  Form    of  Decree  Declaring  a  Deed  in  form  to  he 
a  Mortgage,  and  granting  Bight  to   the  Plaintiff 
to  Bedeem. 
.  .  .  decreed,  that  the  deed,  or  conveyance  [describ- 
ing it],  was  and  is  in  justice  and  equity  a  mortgage 


176  FORMS 

only,  it  having  been  given  by  [name]  as  security  only 
for  [here  state  the  purpose  for  which  the  deed  was 
given]  and  that  the  plaintiff  has  a  right  to  and  is 
entitled  to  redeem  the  premises  described  in  the  bill 
and  in  said  deed  upon  the  payment  of  [here  state  the 
sum,  or  the  performance  of  all  other  conditions] 
within  thirty  days  from  the  entry  of  this  decree,  with 
interest  on  said  sum  [if  any  is  due]  to  the  time  of 
payment.  (If  the  defendant  has  sold  any  of  the  land 
or  property,  the  decree  should  be  that  he  account  for 
the  value  thereof,  or  the  proceeds  and  the  plaintiff 
should  have  the  right  to  redeem  the  remainder)  and 
thereupon  on  the  payment  of  said  sum  or  tlie  per- 
formance of  other  conditions  the  said  defendant 
shall  execute  in  due  form  of  law  a  deed  of  release 
and  quit-claim  to  said  plaintiff,  her  heirs  and  assigns, 
of  all  their  right,  title,  and  interest  in  said  premises 
acquired  under  or  by  virtue  of  said  conveyance  and 
deed.  (If  tlie  defendant  has  conveyed  any  of  the 
premises  and  the  plaintiff  desires  to  redeem  that  also, 
the  decree  should  state  that  [name  of  purchaser]  is 
not  a  bona  fide  purchaser  without  notice,  but  took 
his  alleged  deed  with  notice  of  the  plaintiff's  rights, 
and  holds  the  same  subject  to  the  plaintiff's  rights 
therein.) 

Decree  on  Bill  to  Have  Mortgage  Declared  Paid  and 
Cancelled  on  the  Record. 

...  It  appearing  that  the  mortgage  mentioned  in 

the    bill    bearing    date  and    recorded has 

been  fully  paid  and  satisfied,  thereupon  it  is  ordered 
adjudged. and  decreed  that  the  same  be  cancelled  of 
record,  and  be  no  longer  a  lien  upon  the  said  premises 
therein  described   against  the  said  complainant,    or 


FORMS  177 

any  person  or  persons  claiming  by,  from,  or  under 
him,  and  that  said  defendant  and  all  persons  claiming 
by,  from,  or  under  him  be  debarred  and  perpetually 
enjoined  from  collecting  any  money  upon  said  deed 
of  mortgage  and  from  setting  up  the  same  against 
the  premises  therein  described. 

Decree  Setting  Aside  Discharrje  of  Jlortf/age  Entered 
by  Mistake  in,  the  Margin  of  the  Record  in  the 
Registry  of  Deeds. 

.  .  .  decreed  "  that  the  words  of  discharge  of  the 
mortgage  were  written  upon  the  margin  of  the  record 
book  in  the  Registry  of  Deeds  by  accident  and  mis- 
take and  did  not  form  an  actual  payment  of  the 
mortgage  debt,  or  cancel  or  discharge  the  mortgage, 
but  were  inoperative  and  void  and  left  it  in  the  same 
force  and  effect  as  before  ;  and  the  defendant  and  all 
persons  claiming  by,  through,  or  under  her  be  and 
hereby  are  prohibited  and  enjoined  from  setting  up, 
using,  or  relying  upon  said  words  of  discharge,  either 
as  proof  of  payment  of  a  debt  or  a  discharge  of 
the  mortgage."    (Bruce  v.  Bonney,  12  Gray,  107,  113.) 

Decree  on  Bill  under  cl.  7,  §  3,  c.  159,  R.  L,,  to  Reach 
and  Apply  any  Property,  Right,  Title,  or  Interest 
Belonging  to  Defendant,  in  Fayment  of  a  Debt. 

.    .    .   and   decreed,  that   there    is    due    from  the 
defendant  [name]  to  the  plaintiff  in  respect   to  the 

subject-matter  set  forth  in  said  bill  the  sum  of 

with  interest  thereon  from ,  and  that  the  said 

defendant  pay  to  the  said  plaintiff  said  sum  with 
interest  thereon  to  the  date  of  payment,  together  with 
$  costs   of   suit   within   thirty   days  from   the 

12 


178  FORMS 

date  of  tins  decree,  and  in  the  event  that  the  defend- 
ant [name]  shall  refuse  or  shall  neglect  to  pay  to  the 
plaintiff  said  sum  and  interest  and  costs  within  thirty- 
days  from  the  date  of  this  decree  then  [nauie]  as 
special  master  be  appointed  and  directed  to  sell  at 
public  auction  to  the  highest  bidder,  after  proper 
notice  and  advertisement  of  said  sale,  all  the  property, 
right,  title,  and  interest,  legal  or  ecpiitable,  of  the  said 
defendant  [name]  which  said  defendant  [name]  had 
at  the  time  of  the  service  of  the  bill  on  him  in  and 
to  [describing  fully  the  property],  and  upon  such  sale 
by  said  special  master  the  said  defendant  [name]  is 
ordered  to  make  and  deliver  a  written  conveyance  of 
said  property,  &c.  [describing  it],  to  the  purchaser, 
at  said  sale.  And  it  is  ordered  that  the  proceeds  of 
said  sale  shall  be  applied  by  said  master  as  follows : 
First,  to  the  payment  of  the  costs  and  expenses  of  said 
sale  including  the  fees  of  said  special  master.    Second, 

to  the  payment  to  the  plaintiff  of  said  sum  of 

and  interest  from to  the  date  of  payment  and 

the  costs  as  aforesaid.  Any  balance  then  remaining 
in  said  master's  hands  shall  be  paid  or  delivered  by 
him  to  the  said  defendant  [name].  (See  decree  in 
Bussell  V.  Burke,  180  Mass.  543,  and  see  siq)ra, 
p.   106.) 

(If  at  the  time  the  decree  is  entered  the  defendant 
is  out  of  the  jurisdiction,  or  beyond  the  reach  of  the 
court,  the  court  may  order  that  the  master,  upon  the 
sale  by  him,  shall  execute  aud  deliver  a  conveyance 
or  assignment  of  the  property,  right,  or  interest  sold 
to  the  purchaser  in  the  name  and  behalf  of  the  said 
defendant.  See  Wilson  v.  Martin- Wilson  F.  Alarm 
Co.,  151  Mass.  515.) 


FORMS  179 

Decree  on  Bill  to  set  tip  Lost  Deed. 

.  .  .  that  the  defendant  execute  and  deliver  to  the 
plaintiff  a  valid  deed  of  conveyance  of  all  the  right, 
title,  and  interest  of  said  defendant  in  and  to  the  real 
estate  described  in  plaintitf' s  bill  and  conveyed  by 
(defendants  intestate  to  plaintiff's  grantor)  by  deed 
dated  .  .  .  which  said  deed  was  accidentally  lost,  after 
the  same  was  acknowledged  without  fault  of  the 
plaintiff  and  without  ever  having  been  recorded. 

Decree  to  Reform  a  Mortgage  so  as  to  Coricey  an  Estate 
in  Fee  Simple. 
...  It  appearing  to  the  court  that  the  mortgage 
set  forth  in  the  bill  was,  as  the  defendant  admits, 
drawn  by  inadvertence,  ignorance,  and  mistake  in  such 
a  manner  as  that  although  it  was  intended  by  the 
parties  to  convey  an  estate  in  fee  simple  in  the  real 
property  therein  described  no  greater  estate  was 
thereby  conveyed  than  an  estate  for  the  life  of  the 
grantee :  thereupon,  on  consideration  thereof,  it  is  or- 
dered, adjudged,  and  decreed  that  the  said  mortgage  be 
reformed  by  the  substitution  of  the  word  "heir"  for 
the  word  "successors"  wherever  the  same  occurs  in 
said  mortgage,  as  well  in  the  habendum  clause  therein 
as  elsewhere,  and  that  said  mortgage  shall  be  held, 
construed,  and  regarded  as  having  conveyed  an  estate 
in  fee  simple  in  said  real  property  therein  described, 
any  want  of  apt  words  therefor  in  said  mortgage  as 
originally  drawn  to  the  contrary  notwithstanding. 

Decree  for  Foreclosure. 

.  .  .  decreed  that  there  is  now  due  to  the  plaintiff 
on  the  mortgage  mentioned  in  the  bill  for  principal 


180  FORMS 

and  interest,  the  sum  of and  that  if  the  defend- 
ant  shall    pay   said    sum,    with    interest    and   with 

the  costs  of  this  suit  to  the  plaintiff  within 

days  from  the  date  of  this  decree,  the  plaintiff  shall 
thereupon  discharge  said  mortgage  and  cause  an  entry 
of  such  discharge  to  be  put  upon  the  record  thereof, 
but  in  default  of  such  payment  within  said  period  it 
is  ordered  and  decreed  that  the  said  defendant  shall 
thenceforth  stand  absolutely  debarred  and  foreclosed 
of  and  from  all  equity  of  redemption  of,  in,  and  to 
the  mortgaged  premises. 

Decree  on  Bill  of  Interpleader. 

...  it  appearing  that  the  complainant  held  the 
fund  mentioned  in  the  bill  for  the  true  owner,  with- 
out having  or  claiming  any  right  or  interest  therein, 
and  that  said  fund  has  been  deposited  in  court  to 
await  the  further  order  of  said  court,  thereupon  it 
is  adjudged  and  decreed  that  said  bill  is  properly 
brought  by  said  complainant  that  he  is  entitled  to 
relief,  and  said  complainant  is  hereby  dismissed  from 
the  further  prosecution  of  this  suit  with  d  his 
costs,  to  be  paid  by  the  clerk  out  of  the  said  fund, 
and  that  the  complainant  be  released  and  dis- 
charged from  all  claims  of  liability  to  either  of  the 
defendants  in  this  suit  for,  upon,  or  by  reason  of 
said  fund.  And  it  is  further  ordered  and  decreed 
that  said  defendants  do  interplead,  settle,  and  ad- 
just their  several  claims,  demands,  and  matters  in 
controversy  in  this  suit  as  between  themselves  and 

the  cause  be  referred  to as   master  to  find  and 

report  which  of  said  defendants  is- entitled  to  the  said 
fund. 


FORMS  181 

Decree  on  Bill  for  Specific  Performance  of  Agreement 
to  Conveif. 

.  .  .  and  decreed  that  the  agreement  mentioned  in 

the  plaintiff's  bill  dated onght  to  be  specifically 

performed  and  carried  into  execution,  and  it  is  ordered 
and  decreed  that  the  defendant  within  ten  days  from 
the  date  hereof  execute  a  proper  deed  of  transfer  of 
the  estate  described  in  said  agreement  and  more  fully 
described  in  the  first  paragraph  of  the  plaintiff's  bill, 

to  the  plaintiff,  subject  only  to  the  mortgage  of 

upon    said   property,    with    interest   accrued  thereon 

(which  mortgage  and  interest  are  to  be  assumed 

by  the  plaintiff)  upon  payment  by  the  plaintiff  of  the 

sum  of and  it  is  further  ordered  and  decreed  that 

the  defendant  comply  in  all  respects  with  whatever 
may  be  necessary  and  proper  for  giving  the  plaintiff 
peaceable  possession  of  said  premises.     And  that  the 

cause  be  referred  to as  master,  to  require  and 

determine  what  damages  have  been  sustained  by  the 
plaintiff  by  reason  of  the  defendant  not  having  spe- 
cifically performed  said  agreement.  See  O'Brien  v. 
Boland,  166  Mass.  481. 

Decree  Enjoining  Use  of  Trade  Xante. 

.  .  .  decreed  that  the  respondent,  its  agents,  attor- 
neys, and  counsellors  are  hereby  enjoined  to  desist 
and  refrain  from  using  the  combined  words  "  Waltham 
Watch  "  or  "  Waltham  Watches,"  either  by  themselves 
or  in  combination  with  other  words  in  connection 
with,  or  in  describing,  advertising,  or  selling  watches 
or  parts  of  watches ;  from  using  the  word  "  Waltham" 
in  any  advertisement  of  its  watches  otherwise  than 


182  FORMS 

geographically  in  connection  with  the  word  "  Massa- 
chusetts "or  the  abbreviation  "Mass."  in  giving  its 
place  of  business,  and  are  required  in  all  advertise- 
ments hereafter  issued  to  take  precaution  to  distin- 
guish the  defendant  from  the  plaintiff  to  the  full 
extent  of  commercial  practicability;  from  using  the 
word  "  Waltham,"  with  or  without  other  words,  on 
the  dials  of  its  watches;  from  making,  selling,  or 
disposing  of  watches  or  parts  of  watches  having  plates 
inscribed  with  the  word  "  Waltham "  unless  accom- 
panied by  the  word  "  Mass.,"  and  unless  there  is  also 
prominently  collocated  with  the  word  "  Waltham " 
the  words  "A  new  watch  company  at  Waltham  est'd 
1885,"  and  unless  its  corporate  name,  whether  in  full  or 
abbreviated,  is  printed  on  such  plates  in  letters  easily 
legible;  from  using  the  word  '•'  Waltham  "  in  any  such 
way  as  to  induce  the  belief  that  its  watches  are  made 
by  the  plaintiff,  and  from  doing  anything  to  avail  itself 
of  the  reputation  of  the  plaintiff's  watches  to  increase 
the  sale  of  its  own.  See  Ajn.  Waltham  Watch  Co.  v. 
U.  S.  Watch  Co.,  173  Mass.  85.  See  Decree  in  Via?io 
T.  Bacclgalupo,  183  Mass.  160,  against  using  name  of 
"Boston  Peanut  Roasting  Company." 

Decree  to  Restrain  Disclosure  of  Process  and  Formulas. 

.  .  .  decreed  that  "the  defendant  be  perpetually 
enjoined  from  in  any  way  disclosing  or  divulging  the 
processes  and  formulas  referred  to  in,  or  covered  by 
the  agreement,  a  copy  whereof  is  annexed  to  the 
plaintiff's  bill  of  complaint,  or  any  part  thereof;  that 
the  matrices  as  devised  and  improved  by  said  defend- 
ant, as  manufactured  prior  to  the  filing  of  the  bill  and 
to  the  hearing  of  the  cause,  come  within  the  last  clause 
of  said  agreement,  and  the  plaintiff's  right  therein 


FORMS  183 

under  said  agreement  is  hereby  established ;  that 
accounts  under  said  agreement  be  taken  when  sales  of 
said  matrices  or  other  articles  covered  by  said  agree- 
ment are  made,  and  that  plaintiff  recover  the  costs  of 
this  suit,  to  be  taxed  by  the  Clerk."  Stratton  v. 
Seavern,  163  Mass.  73,  76. 

Interlocutory  Decree  Taking  Bill  for  Confessed. 

This  cause  came  on  to  be  heard  at  this  sitting  upon 
the  motion  to  take  the  bill  for  confessed,  and  thereupon 
after  hearing  counsel  for  the  complainant  and  it 
appearing  that  due  service  had  been  made  upon  the 
respondent  and  that  he  has  failed  to  appear  and  file 
his  answer,  plea,  or  demurrer  within  one  month  after 
the  day  of  appearance,  on  consideration  thereof  it  is 
ordered  and  decreed  that  the  motion  be  allowed,  the 
bill  be  taken  for  confessed,  and  the  matter  thereof 
decreed  accordingly.     (Equity  Rule  YIII.) 

Decree  Appointing  Receiver  of  a  Copartnership. 

This  cause  came  on  to  be  heard  upon  the  return  of 
an  order  of  notice  to  show  cause  why  a  receiver  should 
not  be  appointed,  and  thereupon,  after  hearing  the 
parties    by    their    respective    connsel,    it    is   ordered 

and  decreed  that  of  be   and  he  hereby  is 

appointed  receiver  of  the  property,  moneys,  debts, 
and  effects  of  every  nature  and  kind,  of  or  belonging 
to  the  partnership  mentioned  in  th*-  bill  and  he  is 
directed,  authorized,  and  empowered  to  collect,  get  in 
and  take  charge  of  all  and  singular  thereof  and  to 
hold  the  same  subject  to  the  further  order  of  the 
court.  (Insert  here  such  further  directions  to  the 
Receiver  as  may  be  necessary.) 


184  FORMS 

And  said and  each  of  tliem  are  hereby  required 

and  ordered  to  deliver  to  said  receiver  all  the  money, 
stock  in  trade,  effects,  and  property  of  every  kind  and 
nature  belonging  to  said  partnership  in  their  hands, 
possession,  or  control,  together  with  all  the  books, 
deeds,  documents,  vouchers,  and  papers  relating  thereto. 

And  said and  each  of  them  are  hereby  restrained 

and  enjoined  from  collecting  any  of  the  debts  of  said 
partnership,  and  from  using,  spending,  injuring,  con- 
veying away,  transferring,  selling,  or  in  any  manner 
disposing  of  or  encumbering  any  of  the  effects  or 
property  aforesaid,  except  to  deliver  them   into  tlie 

hands  of  said  receiver.     And  said and  each  of 

them  are  hereby  required  to  make,  execute,  and  deliver 
to  said  receiver  any  of  the  conveyances,  instruments, 
and  transfers  in  writing  which  he  shall  reasonably  be 
advised  to  be  necessary  or  proper  to  have  effectually 
vested  in  him  any  part  of  the  effects  or  property  of 
said  partnership.  And  said  receiver  is  directed  [state 
directions  as  to  management  and  winding  up  of  the 
business  if  that  is  to  b ;  done,  the  disposition  of  the 
partnership  assets  and  the  payment  of  debts.]  And 
said  receiver  is  required  to  file  in  the  office  of  the 
clerk  of  this  court  within  thirty  days  from  the  date 
of  this  decree,  under  oath,  an  inventory  of  all  and 
singular  said  property  together  with  a  list  of  the 
creditors  of  said  partnership  so  far  as  he  may  be  able 
to  ascertain  the  same,  and  from  time  to  time  to  make 
report  to  the  court  of  his  doings  under  this  decree. 
And  said  receiver,  before  entering  upon  the  perform- 
ance of  his  duties  under  this  decree,  shall  give  a  good 
and  sufficient  bond,  in  form  running  to 

for  the  faithful  performance 

of  his  duties,  in  the  penal  sum  of dollars  to  be 

approved  by  the  court;   and  either  of  the  parties  or 


FORMS  185 

said  receiver  may  apply  to  the  court  from  time  to 
time  fov  such  further  directions,  orders,  or  decrees  as 
may  be  necessary. 

Decree  on  Receivers''  Report. 

This  cause  came  on  to  be  farther  heard  upon  the 
return  of  an  order  of  notice  for  the  allowance  of 
the  receivers'  first  report,  and  the  ordering  of  the 
payment  of  a  dividend  to  the  creditors,  and  evi- 
dence was  heard  by  the  court  thereon,  and  coun- 
sel argued  thereon,  and  thereupon  upon  consideration 
thereof  it  is  ordered,  adjudged,  and  decreed  that  the 
receivers'  said  first  report  be  allowed,  and  the  an- 
count  therein  mentioned  be  allowed,  and  that  the 
same  are  hereby  allowed;  and  that  the  claims  of  the 
creditors  as  stated  in  said  report  be  and  the  same  are 
hereby  allowed  ;  and  farther,  that  the  receivers  forth- 
with pay  to  all  the  creditors  whose  claims  have  been 
allowed  a  dividend  of  forty  per  centum  upon  their 
respective  claims,  and  that  the  receivers  hold  in  their 
hands  the  balance  as  shown  by  their  said  account  and 
report  to  await  the  further  order  of  the  court.  White 
V.  White,  169  Mass.  52.  See  also  in  that  case  form 
of  order  to  receiver  to  notify  all  parties  interested 
to  show  cause  why  receivers'  report  should  not  be 
allowed,  etc. 

Decree  Allotvinrj  Creditors  to  Prove  Claim  Late. 

.  .  .  On  the  petition  of a  creditor,  for  leave  to 

prove   his    claim   before the  receiver  heretofore 

appointed  in  this  cause  and  after  hearing  said  peti- 
tioner and  the  receiver  thereon  and  no  cause  being 
shown  or  appearing  to  the  contrary,  thereupon  it  is 


186  FORMS 

ordered    and   decreed    that    said be    allowed    to 

present  liis  claim  mentioned  in  said  petition  to  said 
receiver  notwithstanding  the  same  was  not  presented 

within  the  time  limited  in  the  order  made  on 

day  of and  that  such  claim  be  disposed  of  by 

said  receiver  as  if  it  had  been  presented  within  the 
time  limited  by  said  order. 

Decree  on  BUI  for  Acrountlnij  between  Partners. 

.  .  .  decreed  that  the  Master's  Eeport  be  confirmed ; 
that  the  defendant  be  and  hereby  is  ordered  to  pay  to 

the   plaintiff   the    sum   of ,  with  interest  on   the 

same  from at  the  rate  of  six  per  cent,  per  annum 

until  the  same  shall  be  fully  paid,  the  plaintiff  also  to 
recover his  costs  and  tliat  execution  issue  there- 
for. Cau-h'ij  V.  Cawley^  181  Mass.  451.  (See  interloc- 
utory decree  in  this  case.)  See  Mc3Iarfrie  v.  GuUer, 
et  al.,  183  Mass.  451;    White  v.  White,  169  Mass.  52. 

Decree  on  Bill  to  Restrain  Waste. 

.  .  .  that  the  defendant  put  the  premises  leased  by 
him,  as  described  in  the  plaintiff's  bill,  in  as  good 
repair  so  far  as  may  be  as  the  same  were  when  he 
entered  thereon,  and  that  he  pay  plaintiff  the  sum  of 

as  damages  for  permanent  injury  in  value  to  said 

premises,  caused  by  him;  and  said  defendant,  his 
servants  and  agents  are  hereby  perpetually  enjoined 
from  cutting  down  the  pine  trees  on  the  shore  lot 
described  in  said  bill  and  ordered  to  keep  said  prem- 
ises in  good  repair  in  accordance  -with  the  covenants 
of  his  said  lease  during  the  remainder  of  his  term. 


FORMS  187 

Other  decrees  may  be  fouiul  in  ^Massachusetts 
Reports,  or  with  copies  of  papers  in  decided  causes, 
in  the  Social  Law  Library  at  Boston ;  viz.,  on 

Bills  to  redeem:  Long  v.  Blrhards,  170  Mass.  120; 
Brooks  V.  Brooks,  1G9  Mass.  38. 

Bill  to  set  aside  unauthorized  mortgage :  Lamb  v. 
Mclntire,  183  Mass.  367. 

Bill  by  owner  of  land  to  estop  defendant  from  en- 
forcing mortgage  held  by  him  by  assignment : 
Nkkersoti  v.  Moss.  Title  Ins.  Co.,  178  Mass.  308. 

Bill  to  foreclose  mortgage  which  did  not  contain 
power  of  sale :  Old  Colomj  Trust  Co.  v.  Grfut 
White  Spirit  Co.,  178  Mass.  92. 

Bill  to  enforce  specific  performance  of  contract  to 
purchase  real  estate  :  Shapiro  v.  UArcij,  180  Mass. 
377;  see  also  Jones  v.  Brown,  171  Mass.  318;  Low 
V.  Low,  111  Mass.  306. 

Bill  for  breach  of  contract  and  to  compel  an  account 
and  performance,  etc.:  Holt  v.  Silcer,  169  Mass. 
435. 

Bill  to  rescind  contract  induced  by  fraudulent  repre- 
sentations :  Liffht  V.  Jo  cobs,  183  Mass.  206. 

Bill  to  enjoin  enforcement  of  a  judgment  in  an  action 
at  law:  Brooks  v.  Twitrhell,  182  Mass.  443, 

Bill  brought  by  assignee  of  chose  in  action  vs.  adm. 
of  assignor  and  against  persons  from  whom  claim 
is  to  be  collected :  French  v.  Peters,  111  Mass. 
568. 

Bill  to  recover  an  identified  fund  transferred  by  de- 
fendant, a  trustee,  to  other  defendants,  who  were 
added  by  amendment:  Otis  v.  Otis,  167  Mass, 
245. 

Bill  to  restrain  obstruction  of  a  right  of  way:  Ham- 
lin V.  X.  r.,  d:c.  Rd.,  176  Mass.  514. 


188  FORMS 

Bill  to  restrain  defendant  from  preventinp^  plaintiff 

using    and    repairing    a    drain:    !^liaiujliat'ssij   v. 

Leary,  162  Mass.  108. 
Bill  by  ward  against  guardian  to  restrain  disposition 

of  real  estate  and  set  aside  conveyance  of  same: 

Goodell  V.  Goodell,  173  Mass.  140. 


INDEX 

[keferenxes  ake  to  pages.] 

A. 

ABATEMENT,  pleas  in,  57-56. 
ABSENT    PARTY,  effect  of  decree  on,  22,  33. 
ADEQUATE   REMEDY,  at  law,  5. 
ADMINISTRATOR,  &c  ,  when  proper  party,  27. 
ADVANTAGE,  of  decrees  in  equity,  95. 
ADVICE,  of  counsel,  no  defence  for  contempt,  132. 
AGREEMENTS,  of  attorneys,  to  be  in  writing,  hJ'J. 
ALLEG.ATIONS   IN    BILLS,  7-11. 

of  fraud,  8,  9. 

of  "information  and  belief,"  10. 

to  avoid  laches,  11. 

by  stockholders  against  officers,  11,  12. 

the  capacity  of  party  when  admitted,  32. 

of  not  having  remedy  at  law  not  necessary,  4. 

in  .«uits  for  specific  performance,  9. 
AMENDMENTS,  158. 

from  equity  to  law,  6,  158,  160. 

when  demurrer  sustained,  time  given  to  amend,  159. 

answer  may  be  withdrawn,  when,  159. 

not  to  set  up  new  matter  occurring  after  filing  bill, 
when,  159. 
ANSWERS.  59. 

not  on  oath,  59. 

equity  rule.s  as  to,  59,  60. 

to  only  what  concerns  defendant,  60. 

to  state  facts,  not  arguments,  61. 


190  INDEX 

[Retereuces  are  to  pages.] 

ANSWERS,  —  Continued. 

should  not  be  evasive,  61. 

"special  matter  "  in,  46. 

may  be  withdrawn  to  allow  demurrer,  1.59. 

different  parts  of,  must  be  consistent,  61. 

general  denial  not  sufficient,  61,  62. 

hearing  on,  62,  63. 
APPEALS,  153-157. 

party  aggrieved,  151,  153,  156. 

from  interlocutory  decree,  153,  154,  155. 

from  final  decree,  1.53,  154,  155. 

one  of  several  defendants  may  appeal,  when,  156. 

not  ordinarily  from  consent  decree,  154. 

from  rescript  decree,  154. 

frivolous,  double  costs,  179. 
ARGUMENTS,  open  and  close,  .50,  88. 
ARREST,  on  bills  in  equity,  149. 

ATTACHMENT,  dissolved  by  appointment  of  receiver,  141. 
ATTORNEYS,  agreements  of,.  169. 

B. 
BAR,  pleas  in,  58. 
"  BELIEF,"  &c.,  not  sufficient,  10. 
BILLS,  1-18. 

venue  of,  18. 

must  be  brought  by  party  in  interest,  21. 

no  proceeding  or  injunction  till  bill  filed,  122. 

jurisdiction  of,  1-6. 

stating  part  of,  7. 

parties  to,  19-28. 

parties  iilaintiffs,  29-32. 

parties  defendants,  33-35. 

what  a  bill  must  show,  10. 

interpleader,  36—40. 

cross-bills,  41-42. 

discovery,  43-44. 

supplemental,  45. 


INDEX  191 

[References  are  to  pages.] 

BILLS   TO   REACH    AND   APPLY, 

nature  of,  16,  17. 

must  have  specific  statement  of  claim,  11. 

amount  as  to  jurisdiction,  14,  15. 

"debt"  in,  IG. 

decrees  on,  105-108. 

what  may  be  reached,  108-109. 

what  may  not  be  reached,  109-111. 

trial  by  jury  of  claim  in,  01-93. 


CASES,  reserved  or  reported,  150. 
CERTAINTY,  in  pleading,  7-9. 
CESTUI   QUI   TRUST,  party  to  bill,  24. 
CO-DEFEXDAXTS,  when  decrees  made  between,  99. 
COLLUSION,  to  be  avoided,  in  interpleader,  39. 
CONFLICT,  between  courts,  140. 
CONSENT,  decree  not  appealable,  154. 
CONSIDERATION,  should  be  stated,  when,  56. 
CONSOLIDATION",  of  actions  in  one  suit,  160. 
CONTEMPTS,  128-133. 

power  to  punish  inherent  in  court,  128. 

no  other  court  to  interfere,  excejjt  as  to  jurisdiction, 
129,  130. 

charges  of,  should  be  specific,  131. 

proceedings  in  cases  of,  129,  130. 

advice  of  counsel  no  justification,  132. 

punishment  for,  132-3. 

not  triable  by  jury,  except  on  indictment,  129,  130. 

money  judgment  for,  111-112. 
COXVEYAXCE.  how  made  on  decree,  105-108. 
CO-PARTXERSHIP,  bills  for  dissolution  of,  135,  137,  144. 
CORPORATION'S, 

as  parties  to  bills,  24,  25. 

foreign  by  comity,  29. 

in  interpleader,  37,  38. 


192  INDEX 

[References  are  to  pages.] 

CORPORATIONS,—  Conti.utd. 

receivers  of,  130-140.     (8ee  Rkckiveks.) 

necessary  party  iu  suits  against  officers,  24,  25. 

dissolution  of,  140. 
COSTS, 

in  discretion  of  court,  105. 

in  decrees,  96,  97,  98. 

usually  to  prevailing  party,  105. 

but  in  discretion  of  court,  105. 

security  may  be  required  for,  108. 

rules  as  to,  105-168. 

in  interpleadei",  107,  168. 

relating  to  appeals,  169,  170. 

executor  of  trust  fund,  170. 

usually  no  appeal  from  decree  for,  169. 

as  counsel  fees,  amount  of,  168. 

how  taxed,  109. 
COURTS, 

jurisdiction  of  State  and  Federal,  5,  O,  10,  140. 

different,  appointing  receivers,  140,  141. 

of  equity,  active  to  do  what,  11. 
COUNSEL    FEES,  when  paid  out  of  fund,  100,  107. 
CREDITOR'S  BILLS,  general,  who  share  under  decree,  101. 
CRIMES, 

no  equity  jurisdiction,  excepting  when,  13,  14,  119. 

equity  not  to  interfere  with  criminal  prosecutions,  119. 
CROSS-BILLS,  41,  42. 
when  demurrable,  42. 
when  decrees  require,  99. 

D. 

DAMAGES, 

in  lieu  of  specific  performance,  100.  112,  113. 

for  violation  of  injunction,  111,  112. 
DEATH,  of  joint  contractor,  effect  of,  34. 
DEBT, 

amount  of,  as  to  juri.sdiction,  14-10. 

meaning  of  term,  15,  0  5. 


INDEX  193 

[References  are  to  pages.] 

DECREES,  95-114. 

advantage  of  decrees  in  eqiiit}-,  95. 
must  follow  the  pleadings,  95. 

operate  in  personam,  105. 

no,  personally  against  defendant,  not  served  on,  9G. 

against  party  in  other  actions,  95. 

final,  95,  9(3,  97. 

what  not  a  final  decree,  97. 

final  decrees  should  adjudicate  the  costs,  96-97. 

interlocutory,  when  may  be  modified,  1(»4. 

final  decree  not  to  be  entered  pending  exceptions,  97. 

nunc  pro  tunc,  99. 

time  in  decrees,  97. 

interlocutory,  appeal  from  not  to  be  heard  till  case  is 
ready  for  final  disposition,  1.54. 

equitable  conditions  in,  100. 

consent,  decrees  should  so  state,  103. 

conclusiveness  of  final  decree,  103. 

final,  leaves  nothing  open,  96. 

when  bar  to  another  suit.  103,  104. 

revised  and  amended,  how  and  when,  104. 

on  bills  to  reach  and  apply,  105-110. 

for  money  damages  when,  112,  113. 

Equity  Rule  XXXVII.,  115. 

form  of  decree  leforming  instrument.  116. 

to  effectually  dissolve  interlocutory  injunction,  126. 

appeals  from,  153-1.57.     (See  .-\ppkals.) 

may  be  entered  between  co-defendants  when,  99. 

on  bills  for  specific  performance,  lOO. 
DEFENDANTS, 

parties,  33-35. 

necessar\%  33. 

without  jurisdiction  of  court,  34. 

under  legal  disability,  34,  35. 

decrees  against,  within  jurisdiction,  95,  96. 

when  guardian  a<l  litem  necessary,  35. 
DEMURRERS,  46-52. 

lules.  46,  47. 

as  '•  special  matter  "  in  answer,  46,  47. 
13 


194  INDEX 

[References  are  to  pages.] 

DEMURRERS,  —  Conlinued. 

general  and  special,  48. 

none  to  answer,  48. 

joint,  48,  49. 

as  to  practice,  when  sustained,  49. 

for  multifariousness,  49-51. 

waived  when,  50-52. 

laches,  ground  for,  51,  52. 

to  absence  of  necessary  party,  22. 

"  speaking  "  demurrer,  48. 

misjoinder  of  distinct  matters,  49,  172. 

some  chief  grounds  of,  52,  172. 

form  of,  172. 
DISCLAIMER,  (34. 
DISCOVERY,  BILLS  OF,  43,  44. 

use  of,  superseded  by  interrogatories,  70. 

in  aid  of  action  for  personal  injuries,  44. 
DISCRETION,  JUDICIAL,  what,  121. 
DISMISSAL  OF  BILL, 

when  bar  to  another  suit,  10.3. 

when  asked  as  matter  of  right,  105. 

without  prejudice,  105, 
DOUBLE  ASPECT  OF  BILL,  9. 

E. 
EQUITABLE 

execution,  what,  140. 

replevin,  plaintiff  ordered  to  pay  lien,  100 
EQUITABLE  INTERESTS, 

what  may  be  reached,  108. 

what  may  not  be  reached,  110. 
EQUITY  ACTS  IN  PERSONAM,  105. 

jurisdiction  in,  not  limited  to  locality,  95. 

for  one  purpose  will  be  retained  for  all,  3,  4. 
ERRORS,  in  decree,  how  corrected,   104.      (See   Review, 
161.) 

of  counsel,  164. 


INDEX  195 

ITleferences  are  to  pages.] 

EVIDENCE, 

to  be  reported  only  when,  81. 
objected  to,  how  reported,  86. 
EXCEPTIONS, 

in  equity  causes,  151,  152. 

to  master's  report,  82-87,  115. 

not  to  an  answer  for  insufficiency,  151. 

frivolous,  double  costs,  179. 

EXECUTION, 

of  fiual  decree,  when.  111. 
for  costs,  170. 

EXECUTORS  AND  ADMINISTRATORS, 

foreign,  suing  here,  30. 

on  bill  to  recover  interest  conveyed  by  fraud,  31. 
refusing  to  bring  action,  17,  18,  31. 
sliould  bring  bill  to  reach  and  apply,  when,  17,  18,  31. 
may  be  removed  if,  17. 

defendants  by  statute  on  bill  for  specific  performance, 
26. 
EX  PARTE  INJUNCTION,  when,  122,  126. 


FEDERAL   COURTS, 

when  jurisdiction  of  matters  in  state  court,  5, 

jurisdiction,  only  on  a  judgment,  16. 

and  State  appointing  receivers,  140,  141. 
FEES, 

of  receivers,  147. 

of  counsel  out  of  fund,  168. 
FINAL  DECREE.     (See  Decrees.) 

an  order  for,  is  not,  96,  97. 

an  order  overruling  demurrer  is  not,  97. 
FINDINGS  BY  THE  COURT,  S9,  90. 

conclusive  as  to  facts.  89. 

findings  by  the  jury,  93,  94. 

by  the  master.     (See  M.\stkr.) 


196  INDEX 

[References  are  to  pages.] 

FRAUD, 

allegations  of,  in  bill,  7-9. 
money  judgment  for,  when,  112. 
bill  of  review  for,  162,  163. 
bill  resting  on,  must  be  proved,  8. 

G. 
GUARDIAN  AD  LITEM,  29,  30,  35,  73,  102. 

H. 

HABEAS  CORPUS,  in  contempts,  130. 
HUSBAND  AND  WIFE,  suits  between,  27. 

I. 

INFANTS, 

as  plaintiffs,  29,  30. 

as  defendants,  34,  35. 

as  to  decrees  pro  confesso  against,  68. 

interrogatories  to,  73,  74. 

decrees  relating  to,  101,  102. 
"INFORMATION  AND  BELIEF," 

when  not  sufficient,  10. 

affidavit  of,  not  sufficient,  10,  123. 

when  sufficient  in  answering  interrogatories,  72. 
INJUNCTIONS,  117-127. 

not  till  bill  filed,  122. 

not  till  bill  sworn  to,  122. 

issued  to  restrain  injury  to  property,  119. 

issued  to  restrain  threatened  wrongful  levy,  119. 

issued  to  prevent  irreparable  injury,  120. 

issued  not  to  restrain  public  improvement,  120. 

necessity  for,  122,  123. 

in  judicial  discretion,  121. 

oath  on  bills  for,  123. 

service  of,  124. 

by  federal  court  in  bankruptcy  cases,  6. 


INDEX  197 

[References  are  to  pages.] 
INJUNCTIONS,  —  Continued. 

actual  notice  of,  sufficient,  124. 

mandatory,  124. 

modification  of,  125. 

motion  to  dissolve,  summary  hearing  on,  126. 

dissolution  of,  125. 

ex  parte,  when,  122,  126. 

damages  in  lieu  of,  112,  124. 

ad  interim,  what  is,  126. 

stipulation  in  lieu  of,   127. 

equivalent  to  attachment,  when,  127. 

not  on  belief,  &c.,  123. 

standing  order,  122. 
INSUFFICIENCY  IN  ANSWER,  no  exception  for,  151. 
INTERPLEADER, 

bills  of,  36-40. 

stakeholder  in,  36-38. 

by  trustee,  37. 

essential  conditions  of,  37,  38. 

relating  to  creditors,  38. 

when  injunction  will  not  issue  on,  39. 

plaintiff  has  no  interest  in  fund,  39. 

must  show  that  it  is  not  collusive,  39. 

costs  in,  167,  16.s. 

INTERROGATORIES, 

to  the  adverse  party,  70-79. 

right  to,  70-73.  76. 

general  principles  settled,  71,  72. 

"  issue  "  and  "  subject-matter  "  in,  76. 

officers  of  corporations,  71-73. 
not  to  infants,  next  friend  or  guardian  ad  litem,  73,  74 
proper  questions,  74,  75. 

declining  to  answer,  should  state  reasons,  75,  78. 
answers  to,  76,  77.  79. 
by  officers  of  corporations,  71,  72. 
time  for  filing  after  filing  of  the  answer,  70. 
time  for  answering,  76. 
in  interpleader,  40. 


198  INDEX 

[References  are  to  pages.] 
INTERROGATORIES,  —  Continued. 

each  interrogatory  to  be  answered  separately,  76. 

not  to  answer  if  again.st  public  policy,  75. 

not  to  divulge  pi'ivileged  communication,  75. 

not  obliged  to  submit  to  personal  physical  examination, 
75. 

when  answered  on  "information  and  belief,"  72. 

no  right  to  interrogate  adverse  party  more  than  once,  76. 

advice  of  counsel  not  sufficient  excuse  for  not  answer- 
ing, 78. 

not  obliged  to  criminate  himself,  75. 

reasons  for  neglect  to  answer  should  be  stated,  75,  78. 

if  any  of  the  answers  read,  all  may  be,  79. 

not  to  answer  "  what  caused  collision,"  73. 

J. 
JOINDER  OF  PLAINTIFFS  having  common  rights,  23, 24. 
JOINT  PAYEES,  24. 
JUDGMENTS, 

money,  in  lieu  of  special  performance,  100,  112. 

after  violation  of  injunction,  111,  112. 

in  certain  cases  of  fraud,  112. 
JUDICIAL    AND   LEGISLATIVE   POWERS,  130. 
JURISDICTION,  EQUITY,  4,  95,  96. 

exclusive  and  concurrent,  1-3. 

objection,  because  of  remedy  at  law,  3,  4,  5. 

taken  for  one,  retained  for  ail,  purposes,  4. 

between  federal  and  State  courts,  4-6,  16. 

amendment  from  equity  to  law,  6,  158,  160. 

decrees  against  defendant  within,  95,  96. 

as  to  crimes,  13,  14,  119. 

police  power,  as  to,  14. 

amount  involved,  14,  16. 
JURY   TRIAL,  91-94. 

constitutional  right  to,  when,  16,  01-93. 
not  of  contempts,  129,  130. 

effect  of  finding  by,  93.' 


INDEX  199 

[References  are  to  pages.] 

L. 

LACHES, 

demurrers  for,  51,  52. 

ground  of  objection  to  equitable  relief,  114,  163,  164. 

court  may  dismiss  for,  though  not  pleaded,  11. 
LICENSE,  liquor,  not  attachable,  HI. 
LIS  PENDENS,  115. 

M. 

MASTER, 

report  and  exceptions,  80-88. 

duties  of,  Sd. 

extent  of  authority,  80,  81. 

not  to  report  evidence,  81,  86. 

finding  of  fact  by,  HI,  82,  87. 

not  to  report  findings  not  material,  80. 

objections  and  exceptions  to  report  of,  82-84,  86,  115. 

allow  counsel  to  see  report  of,  84,  85. 

correction  of  report,  85,  86. 

commissioner  reporting  evidence,  86. 

motion  to  recommit  report  of,  86,  87. 

recommitment  of  report,  86,  87. 

form  of  oV)jection  to  report,  88. 
MERWIN,  deficiencies  of  the  common  law,  117. 
MONEY  JUDGMENTS,  when  given,  111,  112. 
MORTGAGE,  proper  parties  to  redeem,  25,  26. 
MORTGAGEE,  as  party  to  suits,  25,  26. 
MULTIFARIOUSNESS,  demurrer  for,  49-51. 
MULTIPLICITY  OF  ACTION,  joining  parties  to  prevent, 
27,  28. 

N. 
NEXT    FRIEND, 
power  of,  30,  102. 
not  liable  for  costs,  102,  168, 
not  required  to  answer  interrogatories,  73,  74. 


200  INDEX 

[References  are  to  pages.] 

NE   EXEAT  REGNO,  148,  149. 
NUISANCE, 

when  enjoined,  14,  119. 
the  bell-ringing  case,  163. 

0. 

OATH  TO  BILL,  form  of,  123. 
OBJECTION, 

to  master's  report,  object  and  nse  of,  82-84,  115. 

form  of,  88. 

must  be  filed  with  master,  82-84. 
OBJECTIONS    TO    EVIDENCE,  how  saved,  86. 
OPEN   AND   CLOSE   IN    ARGUiMENT,  50,  88. 

P. 

PARDON,  no  executive  for  criminal  contempt,  133. 
PARAGRAPHS   TO    BILL    AND    PRAYER,  IS. 
PARTIES   TO   BILLS,  19-28. 

general  rule  all  parties  having  an  interest,  19-21. 

bill  by  some  on  behalf  of  others,  21. 

refusal  of  party  to  join,  21. 

absence  of  necessary,  22,  23. 

three  classes  of,  23. 

who  should  be  in  certain  instances,  23-28. 

cases  holding  necessary  parties  named,  28. 

cases  holding  necessary  parties  not  named,  28. 

stockholders  against  officers,  11,  12. 

who  may  join  to  stop  nuisance,  27. 
PARTIES   DEFENDANTS.     (See  Defkxdaxts.) 
PARTIES   PLAINTIFFS.     (See  Plaintiffs.) 
PARTNERSHIP   AND   PARTNERS,  as   parties   to   bil 

23,  24. 
PENDENTE   LITE,  purchaser,  bound  by  decree,  115. 
PERSONAM,  equity  acts-in,  10-5,  107. 


INDEX  201 

[References  are  to  pages.] 

rLAIXTIFFS,    PARTIES,   29-;32. 

who  may  be,  general  rule,  29. 

infants,  idiots,  &c.,  by  guardian,  29,  30. 

foreign  receivers  and  executors  as,  30,  31. 

executors  and  administrators  as,  31. 

allegation  that  party  is  officer,  when  admitted,  32. 
PLEAS,  53-58. 

office  of,  53. 

usually  contain  but  one  defence,  53,  54. 

to  charge  of  fraud,  &c,,  54. 

insufficiency  of,  55. 

convenience  of,  55,  56. 

hearing  on,  56,  57. 

pendency  of  other  action  in  abatement,  57. 

effect  of  allowing  or  overruling,  56. 

form  of,  no  protestation,  &c.,  58,  173. 

PRAYER  IN  BILL,  12. 

should  be,  when  injunction  wanted,  12. 

for  general  relief  not  necessary,  12. 
PROCEEDINGS,  stayed  on  appeal  when,  154. 
PROCEDURE,  on  decrees  to  reach  and  apply,  105-108. 
PRO  CONFESSO,  67. 

bills  taken  when,  67,  68. 

hearing  on  form  of  decree,  67,  68 

decrees,  68. 

decrees  vacated  when,  08. 

hearing  on  accounting  on,  68,  69 

order  for,  not  a  final  decree,  97. 

tinal  decree  not  on  same  day,  69. 

decree  of  as  to  one  defendant,  case  goes  on  as  to  others, 
68. 

a  material  amendmfent  vacates  decree,  69. 

PROPERTY, 

taken  to  be  specifically  described,  108. 

rights,  jurisdiction  of,  13. 

rights,  amount  necessary  for  equity  jurisdiction,  14,  15. 

PROTESTATION,  not  in  demurrer  or  plea,  52,  58. 


202  INDEX 

[References  are  to  pages.] 

PUBLIC  OFFICERS,  no  jurisdiction  in  equity  over,  13,14. 
PURCHASER  PENDENTE  LITE,  115. 
from  receiver  protected,  142. 

K. 

REACH  AND  APPLY, 

bills  to,  14-17. 

decrees  under,  105-112. 
RECEIVERS,  134-147. 

appointment  of,  134. 

not  appointed  ex  parte,  139. 

of  corporations,  136-144. 

appointed  by  different  courts,  140. 

property  in  hands  of,  141. 
not  attachable,  141. 

liability  of,  142. 

purchaser  from,  142. 

duties  and  powers  of,  134,  135. 

bond  by,  144,  145. 

removal  and  discharge  of,  146. 

fees  of,  147. 

to  issue  certificates  rarely  allowed,  144. 

foreign  receiver,  power  of,  31. 

when  attachment  di.s.solved  by,  141. 

when  may  continue  business,  144. 
REDEEM, 

parties  necessary  on  bills  to,  25,  26. 

time  in  decrees  on  bills  to,  114. 
REFORM  OF  INSTRUMENT,  how  made,  116. 
REHEARING  BY  MASTER.     (See  Master.) 
RELIEF, 

jurisdiction  for,  when  fixed,  4,  5. 

prayer  for  general,  not  necessary,  12. 

general  injunction  necessary,  12. 
REMEDIES. 

equity  exclusive  when,  1-3. 

concurrent  when,  1-3. 

objection  because  of,  at  law  when,  3,  51. 


INDEX  203 

[References  are  to  pages.] 

REPLICATION,  65,  66. 
REPORT  OF  MASTER,  'SO. 

should  contain  conclusions  of  fact,  80,  81. 

not  to  contain  the  evidence,  81,  82. 

objections  to,  the  use  of,  83,  84,  115. 

when  too  late,  87. 

exceptions  to,  founded  in  facts  in,  83. 

errors  corrected  in.  how,  &c.,  85,  86. 
RESERVED  OR  REPORTED  CASES,  150. 
RES  ADJUDICA  TA,  103. 
REVIEW, 

bills  of,  161. 

only  of  final  decrees,  104. 

will  lie  when,  161-163. 

limitation  of,  162,  163. 

not  for  error  of  coun.sel,  164. 
REVIVOR,  bills  of,  now  had  by  amendment,  45. 
RULES  OF  COURT,  force  of,  80. 


S. 

SALE  BY  MASTER  OR  RECEIVER,  on  bills  to  reach 

and  apply,  105-108. 
SAFETY  DEPOSIT  COMPANIES.     (See  111.) 
SERVICES   CONTRACTS   FOR  PERSONAL,  not  ordi- 
narily enforced,   120. 
SILENCE,  fraud  in,  162. 
SPEAKING  DEMURRERS,  48. 
SPECIFIC    PERFORMANCE, 

allegation  of  written  agreement  on  bill  for,  9,  10. 

decreed  defendant  on  later  agreement,  99. 

decree  for  money  damages  in  lieu  of,  101. 

of  vendor's  interest.  100,  101. 

executors  and  administrators,  defendants,  26. 

grounds  for  refusing  order  for,  112-114. 
STAKEHOLDER.     (See  Ixtkkpi.eadkk.') 


204  INDEX 

[References  are  to  pages.] 

STATING   PART   OF   BILL,  7. 

allegations  and  averments  in,  7-10. 

allegations  of  fraud  in,  7-9. 

"what  must  show,  10. 

of  bills  to  reach  and  apply,  18. 
STIPULATION    INSTEAD   OF   INJUNCTION^,  126. 
STOCKHOLDER,  bills  by,  11,  12. 
SUPPLEMENTAL   BILLS,  45. 

T. 

TIME, 

computation  of,  76. 

to  be  definitely  stated  in  decrees  to  redeem,  114. 
TITLE, 

a  party's,  to  state  his  positively,  10. 

cannot  be  changed  by  mere  force  of  decree,  107. 
TRIAL   BY  JURY, 

when,  91-91. 

of  issues,  when  discretionary,  91. 

on  bills  to  reach  and  apply,  16,  91,  92. 

plaintiff  no  right  to,  when,  92. 

how  lost,  92. 

finding  by  jury,  effect  of,  93. 

not  in  contempt  proceedings,  129,  130. 
TRUSTEE,  in  interpleader,  87. 
TRUSTS,  suits  respecting,  cestui  qui  t?-us(  a  party,  24. 

U. 

UNFAMILIARITY  WITH  RULES  OF  PRACTICE,  104. 

W. 

WITHOUT   PREJUDICE,  bill  dismissed,  105. 
WRIT, 

bill  in,  149. 

service  of,  on  infants,  35, 


uc  so. 


AA    000  784  250    3 


